Texas and Pacific Railway Company v. Murphy. as the sole judges thereof, the fact of negligence as well as all other facts in every case? The question is easily answered. By our general laws, relating to railroads, certain duties are imposed upon companies running passenger and freight trains upon their roads, such as posting up signs where common roads cross the track, badges worn by certain officers, giving notice of time of running cars, receiving and transporting passengers and freight, when presented a reasonable time previous to starting from the stations, ringing a bell or blowing a whistle in passing roads and streets, providing brakes and careful brakemen, stopping at the stations five minutes, the breach of which duties so prescribed may be declared, as matters of law, to be wrongful or negligent, when the acts constituting the breach of duty may affect any one injuriously. Railroad companies may also make reasonable regulations of their own for the management and running of their trains, or they may follow general customs in such management and running; which, when established, known, and acted upon by the public, may impose upon the companies duties in reference to others, a breach of which, to their injury, might render such companies liable to damages. The facts involved in such regulations and customs, upon which duties would arise, not being matters known to the court, would have to be proved as other facts, where a breach of such duties might become the subject-matter of a suit for damages. It is presumed that in this case the company had some regulation, or was governed uniformly by some custom in the mode of receiving passengers, and in stopping and in starting their trains, in reference to that purpose. Whether it was regulated by the length of time during which the trains stopped, or by ringing a bell or by blowing a whistle, or by a vocal announcement, is not shown in the evidence. The object of ringing the bell, as spoken of by the witnesses, was not explained. Nor was it shown whether or not it was customary for ordinarily prudent men to attempt to get upon the train while it was moving; nor under what state of circumstances it would be an act of imprudence to attempt it. With such evidence before the jury, they might have been properly able to decide the facts of negligence, both of the company and of the plaintiff, as it was certainly their province to have done in this case. Believing the charge to have been materially erroneous, the judg ment is reversed and the cause remanded. Judgment reversed. City of Navasota v. Pearce. CITY OF NAVASOTA V. PEARCE. (46 Tex. 525.) Municipal corporation — liability from injury from defect in street. A municipal corporation, having, by its charter, "exclusive control and power over its streets, alleys and public grounds and highways," is not subject to an action by a citizen who has suffered injury by a negligent want of repair in its street, unless coupled with such powers, is an express or implied condition that it shall be liable for such injuries.* A CTION for damages. The plaintiff, driving his horse and buggy in a public street of the defendant; his horse slipped and rolled into a ditch in the street and was killed, and his buggy was injured. He had a verdict for those damages, and defendant appealed. J. R. Kennard, for appellant. Boone & Goodrich, for appellee. MOORE, J. We are called upon in this case, for the first time, to determine, whether an action for damages can be maintained against a municipal corporation, such as a town or city, to which the "exclusive control and power over its streets, alleys, public grounds and highways" is given by charter to a party who has suffered an injury occasioned through want of repair of its streets. Numerous decisions from the courts of other States may be cited in which such actions have been incidentally or directly approved A careful examination, it is believed, will show that the precise question which is here presented has been decided in by no means 30 many of them, however, as would be supposed on a casual examination, leaving out of the account the decisions of those States where such actions are given by statute. But still it cannot be questioned that such actions have often been maintained, aside from statutory authority in their support, in courts of the highest authority, and by jurists of pre-eminent learning and ability; and *See, also, Letroit v. Blakeby (21 Mich. 84), 4 Am. Rep. 450; contra, Manderschid v. Dubuque (29 Iowa, 73), 4 Am. Rep. 196. Consult Hill v. Boston (122 Mass. 344), 23 Am. Rep. 322; Aldrich v. Tripp '11 E. I. 141), 23 Am. Rep. 434. City of Navasota v. Pearce. we should be forced to admit that the great, if not overwhelming weight of authority, was unquestionably with the affirmative of the proposition, if the decisions in its favor were in harmony with each other. But they are in irreconcilable conflict, in respect to the grounds on which it is held the action arises and is to be maintained, where any effort is made to develop the principle of law upon which the right of action is founded, if it has any solid support beyond the general current of decisions in the courts of the New England States in its favor, and it is there held that such actions are not maintained by the common law. Mower v. Inhabitants of Leicester, 9 Mass. 247; Barney v. City of Lowell, 98 id. 570; Mitchell v. City of Rockland, 52 Me. 118. It is believed to be now admitted everywhere that an individual action, unless authorized by statute, cannot be maintained against counties, parishes, or commissioners of highways, and such quasi corporations, for damages sustained through their neglect to keep their bridges and highways in repair, although the duty of doing so is clearly enjoined upon them by law, and they have authority to collect taxes or make adequate assessments to this end. Bartlett v. Crozier, 17 Johns. 439; Freeholders of Sussex v. Strader, 3 Harr. 108; Weet v. Brockport, 16 N. Y. 161, note. We confess it does not surprise us, that it has been found somewhat difficult with those who acknowledge the correctness of these decisions, and yet maintain, when a like duty has been imposed upon a village, town or city by its charter, that damages may be recovered of these corporations by an individual who has sustained an injury from neglect of the like duty, to agree upon the ground on which the action is to be maintained. But let us consider the grounds upon which those who insist upon such corporate liability have sought to maintain it. The earliest cases to which reference is generally made in discussing the subject are those of Bailey v. Mayor, etc., 3 Hill, 531; and Mayor v. Furze, id. 612, though neither of them present the precise question which is before us. In the first of these cases the court draws a distinction between powers conferred upon municipal or public bodies, exclusively for public purposes, and those where they have a private interest or estate for private advantage or emolument. No action, it is admitted, can be maintained against the corporation for an omission or breach of duty in respect to the former, while in respect to the latter the corporation stands on the same footing as an indi City of Navasota v. Pearce. vidual having like special franchises. The principle here announced seems to be in strict accord with the doctrine in the case of The Mayor v. Turner, Cowp. 86; and Henley v. The Mayor, etc., 1 Bing. 222. And if municipal corporations are invested by law with franchises and privileges from which they derive private advantages and emoluments, as is well known is often the case in England, we have no question, if an individual suffers injury from a breach of duty by the corporation in respect to these special franchises, that he is entitled to his action. It seems, however, impossible for us to say that incorporated towns and cities derive any private advantage or emolument from the power to control and repair their streets and alleys. In the case of Mayor v. Furze, an altogether different principle is announced. PARK, Justice, in the case of Lyme Regis, when before the House of Lords, 1 Bing. 222, in speaking of corporations and individuals who hold franchises on conditions, says: "It is clear and undoubted law, that whenever an indictment will lie for non-repair, an action on the case will lie, at the suit of a party sustaining any peculiar damage." But so broad an application of this language of Mr. Justice PARK, unquestionably cannot be sustained, as was shown in subsequent cases in the same court, in which it is in effect repudiated. Wilson v. The Mayor, etc., 1 Denio, 601; see, also, Weet v. Brockport, 16 N. Y. 162. If the principle announced in The Mayor v. Furze is correct, unquestionably an action might also be maintained against counties and parishes, though such an action, as is admitted in the case of Russell v. The Men of Devon, 2 Term, 673, had never been even brought prior to that time. In the case of Weet v. Brockport, the court, after an elaborate and careful review of the previous decisions, and thorough discussion of the question, held, upon the authority of Lord MANSFIELD, in the case of Whitfield v. Lord Le Despencer, Cowp. 754, that "a public officer who receives no compensation from, and owes no duty to any private individual, is accountable to the public alone for his neglect." An analogous doctrine, it is also said, may be found. asserted in Brooke's Abr., title, "Action in the Case," upon the authority of the Year Books, that if a highway be out of repair, so that a horse be mired and injured, "no action lies by the owner against him who ought to repair it, for it is a public matter, and ought to be reformed by presentment." The court, in discussing VOL. XXVI. — 36 City of Navasota v. Pearce. the point, also quotes, with approval, the following observations of Judge HUGER, in the case of Young v. Commissioner of Roads, 2 Noti & McCord, 537, who says: "When an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services rendered him, he may be responsible in a private action for a neglect of duty; but where the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution." He also quotes, with marked approval, from the dissenting opinion of Judge SANDFORD, in the case of Hutson v. The City of New York, 5 Sandf. 289, stating, however, that so far as this point is concerned, all his associates concurred with him, as follows: "It seems to us, the true distinction is that we have mentioned. When the duty is to individuals specially, for a reward, originating from them, a civil action may be brought for neglect, whether of themselves or of their subordinates; but when it is a duty to the public generally, undertaken alike for all citizens, the remedy is by indictment only, together with removal from office where prescribed by law." It seems clear, both from reason and authority. that the ground upon which such actions are held to lie, in the case of The Mayor v. Furze, is untenable, and they are maintainable alone on the principle at the basis of the cases of Lyme Regis and the Mayor of Linn, and the series of English cases upon the authority of which they were decided, viz.: that where, for a consideration from the sovereign, a corporation or individual has become bound, either by express or implied covenant or agreement, to do certain things, such corporation or individual is liable, in case of neglect to perform such undertaking, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. From this conclusion, it is evident that the action could not be maintained, unless it can be shown that the corporation held and enjoyed some franchises, right, or privilege, in consideration of having undertaken the duty of keeping its streets in repair. And such, it maintains, is the fact, as shown by the following considerations: The surrender by the government, to a municipal corporation, of a portion of its sovereign power, if accepted, may, as such charters never are imposed upon them, except at their urgent request, with propriety, be considered, says the court, as affording ample consideration for an implied undertaking, on the part of the |