
    Ach et al., Board of Commissioners of Hamilton County, v. Howard.
    (Decided February 18, 1935.)
    
      Mr. Louis J. Schneider, Mr. Walter M. Loche and Mr. Greg H. Williams, for plaintiffs in error.
    
      Mr. Alfred Pfm, for defendant in error.
   Boss, P. J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein judgment was rendered in favor of the plaintiff against the Board of County Commissioners of Hamilton county.

The plaintiff below, William Howard, who will be referred to hereinafter as plaintiff, was the driver of a truck owned and operated by the city of Cincinnati. On the eleventh day of June, 1932, he, in company with eight other men, loaded the truck with pieces of stone, and then proceeded out along Dunbar Boad over a bridge partly in Hamilton county, and under the control of the county commissioners. The bridge collapsed when the loaded truck was almost across it. The truck and the nine men who were riding with the load were precipitated into a creek spanned by the bridge. The' plaintiff, who was driving tbe truck, was severely injured.

In the amended and supplemental petition negligence of the county commissioners is charged, in that the bridge was old and out of repair, and was ‘ ‘ obsolete so far as heavy modern vehicular traffic is concerned, and should have been replaced, ’ ’ that a cement floor was placed upon such bridge which was not of sufficient thickness, and that the steel reinforcing of such' cement floor was not heavy enough and not meshed closely enough to sustain ordinary traffic; further, that the county commissioners, though increasing the weight upon the supports of the bridge, had failed to add additional support for such added weight; that there was a crack in the floor of the bridge for a long time prior to the date of plaintiff’s injury, that the steel support of the bridge had been welded and should have been replaced, and that the abutments of the bridge had disintegrated and settled.

It is further alleged that the commissioners were negligent in not having posted warning signs limiting the load permitted upon the bridge.

The answer contained a general denial, a second defense, alleging sole negligence, and a third defense, alleging contributory negligence — the last two defenses being predicated upon the claim that the plaintiff operated a truck over such bridge, the total weight of truck and load being in excess of ten tons, contrary to the provisions of law.

A reply was filed, in which the allegations of new matter in the answer were denied.

There is evidence that the bridge in question had been repaired from time to time in a temporary fashion, that it had been constructed many years before the occurrence in question, that a heavy layer of reinforced concrete had been super-imposed upon the original sub-structure without strengthening the supports, that for some months just previous to the day-on which it collapsed a crack in the concrete had been gradually widening and lengthening until it reached entirely across the bridge; and this defect, indicating a change in the stress and strain upon the bridge, was obvious to anyone passing over the bridge, and plainly indicated that the abutments were cracked and were steadily settling. The entire floor of the bridge fell into the creek below, and the cantilever supports on one side either gave way or were carried down with the floor.

It thus appears that sufficient obvious defects were apparent for a sufficient length of time to cause the commissioners to be aware that the bridge was out of repair.

Whether the faults existing in the bridge impaired its safety for a reasonable use by vehicular traffic is not made to appear. There is strong evidence to the effect that it had not been so impaired. This evidence is noted by the plaintiff. It consists of credible testimony that up to the date of the collapse the bridge was constantly used by trucks and other vehicles carrying heavy loads.

We are not convinced that upon the question of the negligence of the county commissioners the verdict was against the weight of the evidence. On the other hand, we do conclude there was almost conclusive proof of contributory negligence on the part of the driver of the truck.

The evidence shows that nine men worked from 8:30 a. m. until 10:00 a. m., loading 300 pieces of granite blocks, consisting of quarters, halves, and three-quarters; that a full sized block weighed twenty-eight pounds; that after the collapse of the bridge three truck loads were taken out by the city, consisting of a full load, a 2% ton load, and a third load between % and % of a load on a 2% ton truck. The minimum ■weight of the rock must have exceeded three tons. The truck weighed 15,940 pounds, or over seven tons. As to the weight of the men, there was evidence to the effect that all were average weight, and their combined weight must have been considerably more than a half ton. Thus the total weight carried in and by the truck, including its own weight, exceeded ten tons.

Section 7246, General Code, provides as follows:

“No traction engine or steam roller, and'no vehicle, equipped with solid rubber tires, upon which construction equipment is permanently mounted and attached, weighing in excess of twelve tons, or no trailer, semitrailer, wagon, truck, automobile truck, commercial tractor, or other vehicle, whether propelled by muscular or motor power, weighing in excess of ten tons, including weight of vehicle and load, shall be operated over and upon the improved public highways and streets, bridges or culverts within the state, except as provided in this chapter.

“This provision shall not apply to vehicles run upon rails or tracks or to fire engines, fire trucks or other vehicles or apparatus belonging to any municipal or volunteer fire department or used by such department in the discharge of its functions, or to any trailer, semi-trailer, wagon, truck, automobile truck, commercial tractor, or other vehicle, whether propelled by muscular or motor power, weighing not more than twelve tons, including weight of vehicle and load, when equipped with pneumatic tires. No object shall be moved over or upon such streets, highways, bridges or culverts upon wheels, rollers or otherwise, except as provided in this chapter, in excess of a total weight of twelve tons, including weight of vehicle, object or contrivance, and load.”

The plaintiff manifestly violated the provisions of this statute and was guilty of negligence in so doing.

Our conclusion is that the verdict is manifestly against the weight of the evidence upon the issue of contributory negligence.

_ The judgment is therefore reversed and the cause remanded to the Court of Common Pleas for a new trial.

Judgment reversed and cause remanded.

Matthews and Hamilton, JJ., concur.  