
    Younts v. Avon Lake Village.
    
      Negligence — Injuries resulting from, disrepair of state road— Municipality not Viable where state department charged with maintenance of highway.
    
    A part of a public highway in a village, which, under the provisions of the General Code, is a state road, is under the care and control of the state highway department, which is charged with the duty of maintaining the same, and the mere failure of the village to repair such road does not make the village liable in damages for an injury to a traveler on the road caused by the road being out of repair.
    Highways, 29 C. J. § 440.
    (Decided April 17, 1925.)
    Error: Court of Appeals for Lorain county.
    
      Mr. Charles M. Knight, for plaintiff in error.
    
      Messrs. Glitsch & Stack and Mr. D. B. Symons, for defendant in error.
   Washburn, J.

The plaintiff in error, Charles M. Younts, sued Avon Lake village to recover damages for an injury suffered by him, which he claimed was caused by the negligence of the village in failing to keep a public highway in said village in proper repair.

One of the defenses made was that the highway in question was an inter-county highway and main market road, which had been improved and was being maintained by the state of Ohio, and which at the time of the accident was within the exclusive jurisdiction and control of the state highway department, wherefore the village was not liable for its mere neglect to keep the highway in proper repair.

"When the plaintiff rested his case he had introduced no evidence as to the character of the highway in question, or as to what public body had built it, or was maintaining it; but he relied upon his claim that because the highway ran through the village it was the duty of the village to keep it in repair.

After plaintiff had introduced his evidence, the following stipulation was made:

“It is agreed in this case that the Lake Road on which the alleged accident is supposed to have taken place is known as inter-county highway No. 3, main market road No. 18, formerly main market road No. 13, and that Section M of said road takes in the territory from Lorain Corporation to Cuyahoga county line. It is further agreed that the Village of Avon Lake was incorporated prior to the construction of the improvement in the highway in question, that said highway was improved by the state during the years 1917 and 1918, and that while said highway was under construction by the state said Village of Avon Lake reincorporated, and that said road has been maintained by the state ever since its construction.”

Then the plaintiff rested his case, and the court, upon motion of the defendant, directed the jury to return a verdict- for the defendant.

The record thus presents the question of whether or not Section 3714, G-eneral Code, in view of recent enactments of the Legislature creating the highway department of the state, and providing for the construction and maintenance by the state of inter-county and main market highways through a village, confers upon the village supervision and control of that part of such highways within the village and makes it the duty of the village to keep such highways within the village open, in repair and free from nuisance.

By .'Section 1178 the state highway department is created “for the purpose of constructing, improving, maintaining and repairing a state system of highways,” and it is provided by Section 1181, (leneral Code, that there shall be in such department a deputy who shall “be experienced in road maintenance and repair;” and by Section 1184, General Code, it is provided that the commissioner of such department “shall have general supervision of the * * * maintenance and repair of all

inter-county highways and main market roads.” Section 1193-1, General Code, provides that when “the improvement of an inter-county highway or main market road is extended into or through a village * * * it shall not be necessary for the village to assume any part of the cost and expense of the proposed improvement. If no part of the cost and expense of the proposed improvement is assumed by the village, no action on the part of the village, other than the giving of its consent, shall be necessary; and in such event all other proceedings in connection with said improvement, including the making of assessments, shall be conducted in the same manner as though the improvement was situated wholly without a village.”

If the village does agree to pay for a part of such improvement, then it is authorized by said Section 1193-1 to raise funds for that purpose, the same as it is authorized to do “for street improvements under the exclusive jurisdiction and control of the council of a village.”

It is further provided by Section 1224, General Code, that the state highway commissioner “shall maintain and repair * * * all inter-county highways, main market roads * * * constructed by the state # * * or taken over by the state after being constructed.”

By Section 1226 the term “state highway” means “such part or parts of the inter-county highways and main market roads which have been or may hereafter be constructed by the state.”

By Section 7464, General Code, public highways of the state are classified as state roads, county roads and township roads, and it is therein provided that “state roads shall include such part or parts of the inter-county highways and main market roads as have been or may hereafter be constructed by the state, or which have been or may hereafter be taken over by the state as provided in this act, and such roads shall be mamtamed by the state highway department.”

Long before the legislation above referred to was passed, Section 3714, General Code, provided, as it does now, that villages “shall have the care, supervision and control of public highways * * * within the corporation, and shall cause them to be kept open, in repair, and' free from nuisance;” and by a long line of decisions in Ohio villages have been held liable in damages for negligence in the performance of the duty imposed by this statute.

Since enactment of Section 3714 the Legislature has, by the laws hereinbefore referred to, placed the part or parts of highways known as state roads under the charge and control of the state highway department, and placed upon the department the duty of maintaining such highways and keeping them in repair, and we hold that Section 3714 is modified by such subsequent legislation, and that the part of a public highway in a village, which by proceedings in accordance with such subsequent legislation has become a state highway, is under the exclusive power and control of the state highway department, and that the village is not charged with the duty of its maintenance and repair.

It seems to us reasonable to conclude that the Legislature did not intend that a duty should remain where the power and control necessary to the performance of that duty had been taken away.

This conclusion is justified by the reasoning in the opinion in Weiher v. Phillips, 103 Ohio St., 249.

In the case at bar it appears from the record that the part of the highway where the accident occurred was a state road, improved and controlled by the state, and it follows that the mere failure of the village to interfere with the power and control of the state highway department in the maintenance and repair of such highway does not make it liable in damages for an injury caused by the highway being out of repair. Therefore the trial court did not err in directing a verdict for the defendant village. '

Judgment affirmed.

Parees, P. J., and Punk, J., concur.  