
    ACTION AGAINST COUNTY COMMISSIONERS FOR. NEGLIGENCE.
    Circuit Court of Sandusky County.
    Maria M. Yunker, Administratrix, v. The Board of County Commissioners of Sandusky County.
    Decided, December, 1907.
    
      Roads — “Repair” of — Plank Removed from Bridge by Traction Com* pany — Liability of County Commissioners for Resulting Injury to Pedestrian — Negligence—Section 845.
    
    Leave was.given to a traction company by the county commissioners to lay tracks on and over a bridge and alon'g a pike, which was formerly a state road but by act of the Legislature had been given to the county to keep open and in repair as a public road, While laying its tracks the traction company removed the plank from the bridge and left an uncovered space into which the de» cedent .fell. Held:
    
    That an action will not lie in such a case against the county com» missioners for damages, under the provisions of Section 845, Re» vised Statutes.
    
      Love & GuVberi, for plaintiff.
    
      Hunt (& Gam, contra.
    Haynes, J.; Parker, J., and Wildman, J., concur.'
   The petition in this case was filed on the 15th of March, 1902, by the plaintiff, Maria Yunker, as administratrix of the estate of David Yunker, deceased, and sets forth, among other things, that the defendants, the county commissioners of this county, had' charge of .the.highways and bridges within the county, and especially the bridge over the Sandusky river in the city of Fremont, on the Maumee & Western Reserve turnpike.

For cause of action the plaintiff sets forth that the commissioners' granted -a franchise and right-of-way along the Western Reserve turnpike and said bridge thereon over the Sandusky river in -the city of Fremont, Ohio, to the'Toledo, Fremont & Norwalk Railroad, for the purpose of constructing and operating thereon, and over said highway, and over and upon the bridge aforesaid an electric railway. That while.said company was engaged in the construction of its electric line, it went upon said bridge for the purpose of repairing and strengthening it, and that the defendants negligently and carelessly allowed said company to take up and remove from said bridge a large part of the floor thereof; and said defendants, on or about the 18th day of March, in violation of their duty, carelessly and negligently failed to require said company to repair the same, or cause the same to be replaced, on the 18th day of March aforesaid.

The petition then sets forth the location of the bridge over the river and the height above the waters, and that the defendants further'carelessly ari.5. negligently failed to keep the bridge in proper repair, by permitting the floor thereof to be torn up and left open and unguarded and unprotected, and without causing the open space to be covered, protected and guarded, vdiere said floor was so removed as aforesaid, ,in a sufficient manner to caution and advise the traveling public, and especially foot passengers, that the floor of said bridge had been thus removed; and that it was impossible to travel over said part of said bridge, or to cross from one side thereof to the other, where the floor had been thus carelessly and negligently removed, as was the custom of pedestrians to do. She then avers that the deceased party had fallen through said bridge, without any fault on his part, etc.

It is a matter of public history that .this Maumee & .Western Reserve road was built first under grant from the government,, and a certain amount of the road was built, and is was after-wards completed by the state of Ohio, and it was a state road, owned and controlled by the state of Ohio down to a certain period, some years ago — I think it was in the ’80’s — when, by an act of the Legislature of the state, the commissioners of this county and the commissioners of Wood county were authorized to take over that part of the road in their respective counties and keep the same open and in repair as a public road, the ohjeet, perhaps, being to do away with it as a toll road, as it had been during the time it was under state control.

The plaintiff relies upon this fact, that the commissioners have control of this road, and are bound to keep it in repair, and keep it open as a public road, for the use of the public and safe for the public, and upon that account it is argued that' the commissioners are liable.

I will not stop to read that act. There is nothing in the act that throws any light on this question, and so far as the liability of 1¿he commissioners is concerned, the plaintiff, if she recovers, must recover by virtue of the act of the Legislature, Section 845 of the Revised Statutes. . ,

At that time, on April 13th, 1894, Section 845 was amended so that there was inserted in it—

“And any such boardrbf county commissioners shall bq,liable in their official capacity; for. any damages' received by reason of the negligence dr carelessness of said commissioners in keeping any such road or bridge in proper repair. ’ ’

In the progress óf the' case, a demurrer' was interposed to plaintiff’s petition. That demurrer was overruled, and the defendants given leave to ansvrer, and they filed an answer, and to that answer a demurrer was interposed. The case had been pending two or -three years, and had run along, and finally the matter was submitted, and I suppose an entry was made by the court. At any rate the judge passing upon the demurrer to the answer, held that the demurrer searched the record and that the plaintiff’s petition did not state a cause of action, and thereupon the petition was dismissed, and judgment rendered against the plaintiff, and error, was prosecuted here to reverse the action of the court.

Now it is argued on behalf of the defendants that this road was not out of repair' at all. No repairs were being made to it; but in pursuance of the power vested in the county commissioners they had granted the electric road the right to pass along this street,'and the right to pass across the bridge, and in order to have the bridge sufficiently strong to sustain the cars passing over it, it became necessary to strengthen the bridge, rather than repair it, and they claim that is one reason why there is no liability on the part of the defendants.

But we have passed that by, and have considered this statute, and its application to this case, and this class of cases. In the case of Board of County Commissioners v. Storage Co., 75 Ohio St., 244, decision by Judge Shauck, and it refers largely to the construction of the statute in question, the syllabus of the case is:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the plain meaning of their terms, the amendment of Section 845, Revised Statutes, providing that county commissioners shall be liable for negligence ‘in keeping any such road or bridge in proper repair’ can not be interpreted as creating a liability for ’negligence in the operation of a free ferry.” .

There was a ferry across the Muskingum river, which was-claimed to' -have been built and operated as part of a public" road — public highway — and some person was crossing' with his team, and as he approached the shore on one side his horses went through and were drowned. He sued the county commissioners, claiming that a proper construction of the statute would make that part of the highway. Judge Shauck says:

‘ ‘ The view urged by counsel for the plaintiff is that we should regard the phrase of the amendment ‘any such ro.ad or bridge’ as including a free ferry which the commissioners might see fit to establish and maintain. Since ferries are not mentioned in either the .amendment or the amended section, it is obvious that the suggested interpretation would extend'the section beyond the natural meaning of its terms. If, in contemplation of the Legislature, bridges and ferries are synonyms, it would scarcely have regarded a special section as necessary to authorize the establishment and maintenance of the latter. We need not consider the suggestion that ferries, as well as bridges-, are within the reason of the amendment for interpretation requires o that the meaning of the Legislature be ascertained ■ from what it has enacted. We can not assume that the provision authorizing the establishment of free ferries was absent from the minds of the members of the Legislature when they enacted the amendment, because it was in a different section of the statute, nor are we permitted to indulge in conjecture respecting their action if the provision had been in their minds.. Nor is it a case in which a statute should be construed liberally for the purpose of accomplishing a clearly indicated purpose and to prevent the failure of the statute. If the suggested interpretation is rejected the statute will still operate, and -its operation will be as broad as the appropriately indicated purposes of the Legislature. The argument does not really tend to show that the Legislature has provided for a liability of - the' commissioners, because of their negligence in operating ferries, but rather it is a legislative argument that ferries, as well as bridges, might have been included. To adjudge a liability on that view would be to legislate rather than to adjudicate. These and other like considerations have led to the formulation of the elementary and oft-repeated rule that statutes in derogation of the common law should’not by interpretation be extended beyond their terms. Propriety will be observed, and certainty of interpretation will be promoted, if we assumed that the Legislature acts in view of all legislation relating to the subjects in,hand and with a comprehension of the established rules by'which their intention will be as'certained. ’ ’

Thereupon the Supreme Court reversed the circuit'court and affirmed the common pleas judge, who found in favor of the' commissioners.

The Supreme Court had this statute before them again during this same session, in the case of Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474. The syllabus reads:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the natural meaning' of their terms, the amendment of April 13th, 1894, of Section 845 of the Revised Statutes that ‘any such board of county commissioners shall be liable in its official capacity for any damages received by reason of -its negligence or carelessness in keeping any such road or bridge in proper repair’ can not be interpreted as creating a liability for injuries sustained by one whose horse takes fright at stones which commissioners had collected by the road side for the purpose of repairing a road or bridge, there being no defect in either road or bridge contributing to the injury.” (Judge Haynes read .the opinion of Judge Shauck in full.)

Now the statute reads:

“The county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits-either in law or in equity, involving an injury to .any public state or county road, bridge or ditch, drain or water-course established by such board in their county, and for the prevention of injury to the same, and any such 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,” etc.

We think that under these decisions, without discussing the matter at any great length, that a proper construction of that statute is', that county commissioners- should only be liable for the damages incurred by reason -of negligence in not keeping in: repair any bridge established by them. ' -

The statement'of facts that’ I have'made shows the character of this bridge; by whom it was built, and by whom it is occupied ; and the petition of the plaintiff urholly fails to state, in any manner or form, that this bridge was established by ther county' commissioners; it does not do so because as a matter of fact this is not the case.

For this reason, and upon these decisions, we hold that the court of common pleas did not err in sustaining the demurrer to the petition, and dismissing the case. Having decided this point, we do not care 'to discuss further .the others that were raised in'the case.  