
    No. 815
    YOUNTS v. AVON LAKE (Village)
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 321.
    Decided April 17, 1925
    1053. ROADS AND HIGHWAYS—A part of a public highway passing into or through a village is under care and control of state highway department and failure of village to repair such road does not make it liable for injuries caused by said road being out of repair.
    Attorneys—Chas. M. Knight, Cleveland, for Younts; Glitsch & Stack and D. B. Symons, Lorain, for Village.
   Charles Younts sued Avon Lake Village in the Lorain Common Pleas, 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.

The village for one of its defenses averred 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, and which at tire time of the accident was within the control of the state highway department; and therefore it was not liable for its mere neglect to' keep the highway in proper repair. The court upon motion directed a verdict in favor of the village.

Error was prosecuted and the Court of Appeals held:

1. Section 3714 GC. provides that villages “shall have care, supervision and control of public highways-----within the corporation, and shall cause them to be kept open, in repair and free from nuisance.”

2. Section 1193-1 GC. however, a subsequent enactment provides that when “the improvement of an inter-county highway - - - - is extended into or through a village - - - - it shall not be necessary for the village to assume any part of the cost thereof.” If the village does agree to pay for a part of such improvement, then it is authorized by 1193-1 GC. to raise funds the same as it is authorized to do “for street improvements under the ex-elusive jurisdiction and control of the council of a village.”

3. Since state roads are under the charge of the state highway department, and the duty of maintaining such highways is placed upon it, 3714 GC. is modified by this subsequent legislation and a part of a highway in a village, proceeding in accordance with such subsequent legislation, has become a state highway, is under exclusive control of the state highway department, and the village is not charged with the duty of its maintenance and repair.

4. It is reasonable to conclude that the legislature did not intend a duty should remain where the power and control necessary to the performance of that duty has been taken away. This conclusion is justified by reasoning in Weiher v. Phillips, 103 OS. 249.

5. It follows then, that the mere failure of the village to interfere with the power and control of the state highway department in maintenance of such highway, does not make it liable in damages for an injury caused by said highway being out of repair. Verdict properly directed. Judgment affirmed.  