
    Barks v. Jefferson County.
    
      Action for Personal Injuries from Defective Bridge.
    
    1. Public roads; jurisdiction to establish. — By many decisions it has been held that the statutes must be complied with to give the commissioners’ court jurisdiction to establish a public road.
    2. Bridges; jurisdiction to establish. — There is no statute limiting the discretion of the commissioners’ court in the establishment of bridges in the county to public highways; nor does any statute prescribe the manner or proceeding by which the court acquires jurisdiction of the subject matter of erecting bridges; the court exercises a quasi legislative authority untrammeled by statutory proceedings to acquire jurisdiction, and its decision is not revisable.
    3. Liability of county for personal injuries from defective bridges. The county is’ liable for personal injuries caused from a defective bridge erected under contract with the commissioners’ court, without a guaranty or bond, under Code of 1896, §2512, whether the bridge is on a public highway or not.
    Appeal from Jefferson City Court.
    Tried before Hon. H. A. Sharpe.
    Tbe facts of this case are sufficiently stated in tbe opinion. Upon tbe introduction of all tbe evidence, tbe court at the request of tbe defendant gave the general affirmative charge in its behalf. To tbe giving of this charge tbe plaintiff duly excepted. There were verdict and judgment for defendant. Tbe plaintiff appeals, and assigns as error tbe ruling of tbe court in giving the general affirmative charge requested by tbe defendant.
    Geo. A. Evans and R. V. Evans, for appellant.
    Tbe power conferred by statute upon tbe Court of County Commissioners to erect and repair public bridges (while cognate to) is separate from, and independent of, tbe statute providing the method of establishing public roads; tbe location of bridges is not confined to public highways. — Code of 1886, Chap. 11, Arts. 1, 2, and 3; Greswell v. Greene Go., 21 Ala. 281; 2 Sher. and Eed. Negligence, 390 et seq.; Hays v. Alrieh, 22 So. 168; Elliott on Eoads, p. 38; 1 Am. and Eng. Encyc. (2 Ed.) 921; Rosser v. Bunn, 66 Ala. 95‘6. Where a road is sho wn to be used by tbe public, and to be a public necessity, and to have been recognized by the' commissioners’ court by orders in reference thereto, tbe law Avill presume that it Avas duly established. — Code 1886, §4133; Rosser v. Bunn. 66 Ala. 95-6; Oliver v. Loftin, 1 Ala. 212; Elliott on Eoads, pp. 21, 22, 38 and 613, note 1; Titter v. Iowa Go., 18 IOAva, 90; Gom-r. Oourt v. Moon, 53 Ala. 27-8-9; Hays v. Alrieh, 22 So. 168; Greene Go. v. IJubanks, 80 Ala. 206-7.
    Walker, Porter & Walker, contra.
    
    Code, 1888, §1156, (Code of 1896, §2612,) is a part of a general statutory system relating to Eoads, Bridges, Causeways, Ferries and Water Courses. Tbe Avhole is designed to create a system of highways, and tbe commissioners’ court has uo power to erect a bridge except on a highway. In every reported case, brought under this statute, beginning with Barbour v. Bronson, 36 Ala. 362, it has been distinctly averred and proven that the bridge was on a public road. A bridge cannot be free and public unless located on a public road. — Covington v. Kinney, 45 Ala. 176; Barbour v. Horn, 48 Ala. 649, lb, 566; Sims v. Butler, 49 Ala. 110; Lee v. Yarbrough, 85 Ala. 590; Barbour v. Horn, 41 Ala. 114; Greene v. Eubanks, 80 Ala. 204; Williams v. Stihoell, 88 Ala. 332; Williams v. Colbert, 81 Ala. 216.
   COLEMAN, J.

The appellant sued the county to recover damages for personal injuries sustained by the falling of a bridge in Jefferson county, erected over Village Creek. The evidence is without conflict, and shows that as plaintiff was driving over the bridge, it fell and that he was personally injured. It also shows that the bridge was, by written contract entered into in pursuance of orders and authority of the commissioners’ court of Jefferson county, constructed at a point selected by the engineer, under the instruction of the commissioners’ court, and that a road leading to and from the bridge was opened and made ready for travel, under the superintendence of the county engineer, and that after the completion of the road and bridge, the same was reported to the court of county commissioners by the engineer and that the work of grading the road and erection of the bridge was paid for by orders of the commissioners’ court. It was further shown that prior to the erection of the bridge there was an old road leading from Ensley City to Pratt City which ran alongside a dummy line, and on this road there was a bridge over Village Creek very close to the dummy line bridge; that the new bridge was about one hundred and fifty yards away from the old bridge, and that as soon as the new bridge was erected and road-bed graded for travel, the old bridge was torn down, and the public ceased to use the old road and old bridge at the place of crossing the creek, but began to use the new road and bridge. As soon as the road was prepared for travel and use and the bridge completed, the public began to use it and used it continuously until the falling in of the bridge, and it appears that no guaranty, by bond or otherwise, that the bridge should continue safe for the passage of travelers and other persons as provided by statute (section 2512 of the Code of 1896) was required or executed. There was no record evidence that the road leading to and from the bridge ivas ever declared to be or established as a public road by the court of county commissioners, other than the orders and entries above stated, relative to the grading of the road and contract for the erection of the bridge and orders for the payments. The bridge and new road had been in use about three months.

Section 957 of the Code’ of 1896, referring to commissioners’ courts, is as folloivs: “The court possesses original jurisdiction, to the establishment, change or discontinuance of roads, bridges, causeways and ferries within the county, to be exercised in conformity with the provisions of this Code.”

Chapter 59, Art. 1, of the Code of 1896, contains the statute law relative to public roads. Section 2445 provides that “No public road can be established, changed, or discontinued except on application to the court of county commissioners.” Other sections of the Code under' this article provide, that the application shall be made by petition, the contents of the petition, and by many decisions it has been held that the statute must be complied with, to give the court jurisdiction to establish, change or discontinue a public roach — McDade v. State, 95 Ala. 28. There is no evidence of such proceedings in the record, but section 5399 of the Code of 1896 reads as follows: “Any order of the court of county comissioners by which a road is recognized as a public road, js presumptive evidence thereof.” This statute has been in force a great many years and though now found only in the criminal code, has been applicable to cases other than criminal prosecutions. — Oliver v. Loften, 4 Ala. 240. But conceding that the road was not a public road the question then is, can the county be held liable for injuries resulting from the falling of a bridge erected by the court of county commissioners, on a road not a public road, when no guaranty was taken as provided in section 2512 of the Code supra? The cases heretofore adjudicated by this court, where suit was brought to recover damages resulting from a defective bridge, was where the bridge was erected as a part of a public highway. Art. I, Ch. 59 is confined to roads, and makes no provision relative to bridges, but Art. IIT of the same chapter is titled “Bridges, causeways and ferries,” and contains the statute law on these subjects. We have seen that section 957 of the Code supra, confers upon the court of county commissioners “original jurisdiction for the establishment of bridges, etc., to be exercised in conformity with the provisions of this Code.” The only statutes applicable to bridges, not toll bridges, but free bridges, as that under consideration, is found in sections 2494, 2512 and 2513 of the Code of 1896. They are as follows: (2498.) “The court of county commissioners of each county is invested with authority to establish toll-bridges, free bridges, causeways and ferries within their respective jurisdictions, as hereinafter provided, and may levy a special tax to build such bridges and causeways, when, in the opinion of such court, the public good requires it.”

(2512.) “ When a bridge or causeway has been erected by contract with the county commissioners, with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time, any person injured, in person or property, before the expiration of such period, by a defect in such bridge or causeway, may sue in his own name on the bond or other guaranty, and recover damages for the injury; and if no guaranty has been taken, or the period has expired, may sue and recover damages of the county.”

(2513.) “When any bridge has been erected by contract with the county commissioners, with guaranty, by bond or otherwise, to stand for a stipulated period, and is, during such period, washed away, or so damaged as to become unsafe to the public, the court of county commissioners shall, upon the fact being made known to them by any freeholder of .the county, notify the contractor to rebuild such bridge, if it be washed away, or repair it, if damaged; and in case of his refusal or neglect to do so in a reasonable time (to be judged of by ’the court), shall order suit to be brought in the name of the county on such bond.”

There is no statute limiting the discretion of the commissioners’ court in the establishment of bridges in the county to public highways, nor does any statute prescribe the manner or proceeding by which the court a.c-quires jurisdiction of the subject matjter of erecting bridges. This court is invested with peculiar powers, both legislative and judicial, and exercises a wide discretion for the public convenience. If a stream should divide a thickly settled community, or intervene between 'two adjacent cities separated by a stream, and the commissioners’ court, in the exercise of the discretion vested in it, in the matter of establishing bridges, should by contract, for the convenience of the people and to facilitate travel, erect a bridge over a stream, there being no objection on the part of the owners of the property to be affected by the bridge, we find nothing in the statute to prevent the exercise of such discretion. Section 957 confers original jurisdiction in the matter of establishing bridges, to be enforced in conformity to the provisions of the Code, and sec. 2498 invests them with such authority when in the opinion of such court the public good requires it. How is this opinion to be reviewed by any court, when there is no authority given to review it? The law has been well stated in the matter of public roads, after the court has acquired jurisdiction, in the case of Comissioners’ Court v. Bowie, 34 Ala. 461, 464. It is said upon the question of the expediency of opening or altering a public road, that court exercises a quasi legislative authority, and its decision is not revisable. In the exercise of that authority, it is guided to some extent by its knowledge of the geography of the .county, the wants and wishes of the people, and the ability of the neighborhood to keep the road in repair. * * The court acts upon its convictions of expediency, and policy.” We are of opinion this is the law as to bridges, untrammeled by any statutory provision to confer jurisdiction. Our conclusion is, the court erred in the charge given to the jury, and that under the evidence the plaintiff was entitled to the affirmative charge.

Reversed and remanded.  