
    Alexander et al. Commissioners v. Brady, by His Next Friend.
    
      County Commissioners — Powers and duties — Liability for defective bridge — Petition alleging injury not sufficient, when.
    
    1. Section 845, Revised Statutes, does not impose upon county commissioners a liability for injuries resulting from a defective model furnished by the board of public works for a bridge over a canal belonging to the state. u
    
    2. A petition alleging that a defective bridge at which the plaintiff received an injury is upon a street of a municipality does not show a defect with respect to which the statute imposes a liability on the commissioners of the county.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Miami county.
    The defendant in error filed the following petition in the court of common pleas:
    Freddie Brady, who brings this action by William Brady, his father, his next friend, says that he is a child of six years. He complains of William H. Alexander, Havilah Coppock and W. B. Segner, for that they are the duly elected, qualified and acting county commissioners of Miami county, Ohio, and as such are charged by law with the erection, care, management and control of the bridges in said county. He further says that prior to the date of the injury hereinafter complained of, said defendants as commissioners aforesaid erected what is commonly known as a swing bridge across the Miami and Erie canal on Water street in Troy in said county. In the erection of said bridge said defendants so carelessly and neglectfully constructed the same as to leave at the extremeity of the approaches thereto an opening so that when said bridge swung into the arc of the circle connecting it with said approaches, it left a wedge-shaped opening in such a manner that any object hanging over the end of said bridge would be caught and crushed between the end thereof and the approach thereto with great force and violence. Said bridge is so located that it is the direct passage way for large numbers of children passing from the northwest portion of the city of Troy to the Edwards School building in said city, located near thereto. On Tuesday, the 25th day of June, 1897, about four o’clock p. m., a large number of school children, among whom was this plaintiff, were passing toward and over said bridge, and at the same time a canal boat was passing northward through said bridge, and a large number of said children stopped on said bridge to ride thereon while it was being opened and closed for the passing of the canal boat. Plaintiff was standing on the west embankment of said canal and the children on the bridge enjoying the sport invited and requested plaintiff to jump or climb upon the bridge in its return swing to its proper place in the arc of the circle of the approach thereto. Plaintiff attempted to climb on the bridge while so returning, and by reason of its defective construction in the manner hereinbefore stated, his left leg was caught in said opening by the bridge end coming in contact with the approach and was bruised, broken, crushed and mangled thereby to such an extent that amputation became necessary near the body of plaintiff. Defendants well knew that said bridge was used by children of all ages passing to and from said school, and knew, or by inspection might have known, that said bridge was so defectively constructed, but failed and neglected to put the same in a proper and safe condition, or to place guards or railings about the projecting approaches thereto, or to place any person in charge thereof to see that children were protected against any injury arising from the faulty construction thereof. Plaintiff following his childish instincts, unconscious of the injury which he would sustain, sought to ride upon said bridge as aforesaid and received the injury as aforesaid. He says that by reason of the careless and negligent construction of said bridge on the part of said defendants, and their failure to put protection rails or guards about it, and failure to place a watchman or guardian there over, he received his said injury and suffered the loss of his left limb, great bodily pain and mental anguish near unto death, and is still suffering therefrom; that his injury is permanent, and by reason thereof will be compelled to pass the remainder of his life with but one leg and suffer the inconveniences, disadvantages, humiliation and shame of his mangled and crippled condition, to his damage in the sum of ten thousand dollars, for which sum he asks judgment against the said defendants.
    
      A demurrer to the petition was overruled. After the filing of an answer which denied the allegations of negligence and alleged that the plaintiff’s injuries resulted from his own carelessness, and a reply denying the allegation of the plaintiff’s negligence, there was a trial which resulted in a verdict for the plaintiff. A motion for a new trial was overruled and a judgment followed the verdict. The judgment was affirmed by the circuit court. The commissioners seek a reversal of the judgment upon the ground, among others, that the petition does not state a cause of action against them.
    
      J. Harrison Smith and A. F. Broomhall, for plaintiff in error.
    
      A. R. Byrkett; A. W. DeWeese and J. A. Davy, for defendant in error.
   By the Court:

Prior to the recent amendment of section 845, of the Revised Statutes, it was the established law of this state that county commissioners were not liable for damages resulting from their negligence. Their liability is, therefore, only that which the amended statute imposes. The liability is charged upon them in connection with a grant of power and is in the terms following: “The board of commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and bringing, maintaining and defending all suits, either at law or in equity, involving an injury to any public state or county road, bridge or ditch, drain or watercourse established by such board in their county, and for the prevention of injury to the same and any súch board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of said commissioners in keeping any such road or bridge in proper repair.” The negligence'charged in, the petition relates wholly to the dangerous condition of the bridge, because it was constructed upon a defective model. The liability .’imposed by the statute is for failure to keep such roads -and bridges in proper repair. The statute does not impose upon the commissioners any liability whatever with respect to the plan of construction of bridges over canals belonging to the State. But on the contrary, the requirement of'-section 4937, of the Revised Statutes, is that such bridge must be constructed upon a model furnished by the board of public works. The defect charged in the petition did not result from the negligence of the commissioners in the performance of any duty imposed upon them by law.

2. The terms of the statute will not admit of a construction which would impose upon the commissioners a liability with respect to any highways except those over which they have, by its terms, legal control; that is, “over any public, state or county road.” Control of the' streets of municipalities is not given to them. Such control, is by other provisions of the statutes, given to the municipalities, and the liability for negligence is an incident to the control. The allegation in the petition, that the bridge at which the plaintiff received the injury is “on Water street in Troy,” does not show that it is within the control of the commissioners or in any sense a matter with respect to which they may be negligent in the contemplation of law.

It is also insisted by counsel for the commissioners that.the undisputed facts elicited upon the trial show that the plaintiff’s injuries resulted wholly from his own carelessness. However much of reason there may be for that proposition, we do not regard it necessary to consider the question which it presents, since the points already determined seem to be decisive of the entire controversy.

Judgments of the circuit and commoñ .pleas courts reversed and judgment for plaintiffs i/n error.  