
    Commissioners of Belmont County v. Brown.
    
      Negligence — Liability of county — Failure to erect guard rails to bridge — Sections 7563 and 7564, General Code — Joint negligence of third party.
    
    A county is liable for all damages which are the result of a failure to erect guard rails on the approach to a county bridge, as required by Sections 7563 and 7564, General Code, though the injury was caused by the joint negligence of a third party and the failure of the board of county commissioners to comply with the provisions of the sections of the General Code just noted.
    (Decided May 3, 1916.)
    Error: Court of Appeals for Belmont county.
    
      Mr. George Thornburg and Mr. A. W. Kennon, for plaintiffs in error.
    
      Mr. R. W. Schert zer and Mr. C. E. Timberlake, for defendant in error.
   Pollock, J.

The defendant in error, Effie E. Brown, brought an action in the court of common pleas of Belmont county against the plaintiffs in error seeking to recover for damages which she claimed to have sustained by the failure of the county commissioners to provide guard rails on the sides of the approach to the bridge over the creek known as Capitana creek.

She claimed in her petition that she was riding in an automobile, driven by another person, and as the machine was going up the approach tov this bridge it went over the side of the embankment and she was injured. She further claimed that her injuries resulted from the negligence of the board of county commissioners in their failure to perform their statutory duty in providing guard rails along the sides of this approach.

To this petition an answer was filed, which alleged, among other things, that plaintiff was well acquainted with this highway, with the bridge and its condition, and that plaintiff was guilty of contributory negligence; it also alleged that the driver of this automobile was guilty of negligence in approaching and attempting to drive on this bridge at a high rate of speed, and that the accident was caused by his negligence.

The case went to trial resulting in a judgment in favor of the plaintiff below, and the county commissioners are now seeking to reverse that judgment because of errors which they claim occurred in the trial of the case.

The public road over which the automobile was traveling follows the creek bank to near the end of this bridge, and there makes almost a right-angle turn upon the approach to the bridge. The approach to the bridge is up an elevation of something like twelve degrees, and there was no guard ■ rail on the end of this bridge or on the sides of the approach, as required by Section 7563 et seq., General Code. It was admitted that this end of the bridge, and the approach, is more than six feet above the level of the ground, or more than six feet high.

The testimony shows that on the day of the accident a neighbor by the name of Owens was passing the house of Mrs. .Brown in his automobile, and that she was taken into the automobile; that they proceeded along this public road to the approach of this bridge; and that as they attempted to turn upon the bridge over the approach to the bridge the automobile went over the side of the approach to the bridge, and the plaintiff below was injured.

There is testimony tending to show that the automobile was driven along the public road at a rapid and dangerous rate of speed, and that the speed was not slackened as the automobile approached the end of the bridge or the elevation to the bridge, and that by reason of the rapid rate of speed the driver of the machine was unable to turn it sufficiently to go up the approach and on to the bridge; that Owens, the driver of the machine, was negligent in not checking the speed of the machine before he came to the angle in the road required to turn on to the approach to the bridge; and that his negligence contributed to cause the injury to Mrs. Brown.

Now, in this condition of the evidence, the court, at the close of the testimony, was requested by the defendant below to charge the jury before argument that if from the evidence the plaintiff’s injuries did not result solely from the failure of the commissioners to erect these guard rails, the plaintiff below could not recover. Then, in further request, the court was asked to charge the jury before argument that if the accident occurred from the joint negligence of the driver of the automobile, Owens, and the failure of the. commissioners to erect these barriers, the plaintiff could not recover.

The court refused to give these requests, and in the general charge said:

“If the accident involved in this lawsuit would not have happened had there been such guard rails or hedge fence erected and maintained at the time along the sides of this approach, as we have stated to you the county commissioners were required to erect and maintain, then the failure to so erect and maintain the same was the proximate cause of the automobile falling over said approach, and in that event the plaintiff would be entitled to recover, unless you should further find, — under the rules hereinafter given you, — that she was herself guilty of contributory negligence.

“If the accident would have happened even though the defendants had maintained the guard rails and hedge fence which we have stated to you they were required to furnish, then the plaintiff could not recover in any event, for the reason that in that event the failure to so construct same would not be the proximate cause of the accident.”

Thus, the court refused to charge as requested, and charged that if the accident occurred by reason of the neglect of the commissioners to provide these guard rails, plaintiff had a right to recover. In other words, under the court’s charge to the jury Mrs. ■ Brown had a right to recover even if her injury was the result of the combined negligence of both the board of county commissioners and the driver of the automobile.

The general rule prevails in nearly all of the American courts that where a person riding in a conveyance by the invitation of the driver, having no control over him, and no reason to suspect his want of due care, is injured by the concurring negligence of the driver and a third person, the negligence of the driver will not prevent a recovery of damages from the other tort feasor. 1 Thompson on Negligence (2 ed.), Section 502.

The plaintiff in error urges that as this recovery is based upon a statutory right'requiring the public to pay damages for the neglect of public officers to comply with provisions of the statute, and as at common law there could be no recovery against the county for failure to provide such guard rails, the county is not liable unless the accident occurred from its own sole negligence; that the general rule of the liability of joint tort feasors does not prevail against the county where the liability is created by statute. That is the principal legal question in this case to be determined.

The principle is well supported that where the party injured was in the exercise of ordinary care and the injury was caused by the neglect of public officials, either municipal or county, combined with some accidental cause, the party injured may recover damages against the public body which was negligent. (City of Crawfordsville v. Smith, 79 Ind., 308.) While that question has never been before the supreme court of this state,, yet that court has approved this principle where the action was against a private corporation. (The Hocking Valley Ry. Co. v. Helber, Admr., 91 Ohio St., 231.) The railway company in building its road had excavated under and built a bridge across the public road, and was required to maintain the bridge. The horse drawing the wagon in which plaintiff’s decedent was riding stumbled and fell against the railing of the bridge, and the railing by reason of weakness gave way, resulting in the death of the occupant of the wagon, and the railway company was held liable for negligently causing the death of plaintiff’s decedent.

But in the case at bar we are asked to go a step further and to hold that the county is liable where the intervening or prior cause contributing with the negligence of the county was itself a negligent act.

The decisions in other jurisdictions are not uniform upon that proposition. Our attention is called to the case of Rowell v. City of Lowell, 7 Gray, 100, 66 Am. Dec., 464, in which it is held that where there is a negligent act in conjunction with the negligence of the city the party injured cannot recover.

The same rule is held in Bartram v. Town of Sharon, 71 Conn., 686, 46 L. R. A., 144, placing it on the ground that because the liability is a statutory liability, and not a common-law liability, the recovery is in the form of a penalty. It is penalizing the public, and the county is not responsible where there-was another efficient concurring cause contributing jointly with the negligence of the commissioners in producing the injury.

But, on the other hand, we find at least a majority of the courts holding differently. The Indiana court, in the case of Knouff v. City of Logansport, 26 Ind. App., 202, 59 N. E. Rep., 347, held that where a party on a bridge, which was required to be guarded by the public authorities, stepped out of the way to avoid an accident with a bicyclist who was wrongfully on the bridge, and fell over the bridge, he was allowed to recover.

To the same effect is the case of Loso v. Lancaster County, 77 Neb., 466, 109 N. W. Rep., 752. The second proposition of the syllabus reads as follows:

“2. One who is injured by reason of a defective bridge while riding in a private vehicle may recover from a county otherwise liable, notwithstanding the negligence of the driver, which may have contributed to produce the injury, the injured party being free from negligence and having no authority or control over the driver.”

The subject was in issue in the following cases and the courts announced the same principle as in the cases to which we have just referred: Village of Carterville v. Cook, 129 Ill., 152, 22 N. E. Rep., 14; City of Rock Falls v. Wells, 169 Ill., 224, 48 N. E. Rep., 440; Van Camp v. City of Keokuk, 130 Ia., 716, 107 N. W. Rep., 933; Eskildsen v. City of Seattle, 29 Wash., 583, 70 Pac. Rep., 64, and Gould v. Schermer, 101 Ia., 582, 70 N. W. Rep., 697.

We have this diversity of authorities on this question, and we are left to follow the line which seems to us the more reasonable and the more consistent with justice. The diversity in the adjudicated cases seems to turn on whether the recovery provided by statute should be considered a penalty for the neglect of the public officers to perform a requirement of the statute, or an indemnity for an injury directly caused by the negligence of the public officers to comply with the statute.

Now, should we classify such a statute as a penal statute? Justice Gray in the case of Huntington v. Attrill, 146 U. S., 657, after referring to the words “penal” and “penalty” as strictly and primarily denoting punishment for crime or offenses against the law, said, at page 667:

“But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, not limited to the damages suffered.”

On the next page of this opinion, Justice Gray refers to the case of Reed v. Northfield, 13 Pick., 94, 100, 101, as follows:

“So in an action given by statute to a traveller injured through a defect in a highway, for double damages, against the town, it was held unnecessary to aver that the facts constituted an offence, or to conclude against the form of the statute, because, as Chief Justice Shaw said: ‘The action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty operate to a certain extent as punishment; but the distinction is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity.’ ” We think in the present case the construction that should be placed on the statute is just what its language seems .to mean. It seems to mean that if the public neglects a duty it should be placed on the same ground as an individual or private corporation neglecting its duty to another, and should respond in damages.

Section 7563 provides that the board of county commissioners shall erect or cause to be erected and maintained where not already done, one or more guard rails on each end of a county bridge, and also on the approaches to the bridge. This was the provision of this statute which was neglected or not complied with by the county. Section 7564 provides:

“It shall be a sufficient compliance with the provisions of the next preceding section, if the county commissioners shall cause to be erected and maintained, a good stock-proof hedge fence where a guard rail is required. Such guard rails or hedge fence shall be erected in a substantial manner, having sufficient strength to serve a protection to life and property, * * * .”

The purpose of above section is to protect life and property. And the next section provides for the recovery:

“Section 7565. Failure to comply with the provisions of the next two preceding sections shall render the county liable for all accidents or damages as a result of such failure.”

It seems to us there is nothing here indicating a penal statute. The county is not made liable in a gross sum for the purpose of punishment, but is liable 'to the party injured for all damages sustained as a result of such failure.

“A statute which gives a remedy for an injury, against him by whom it is committed, to the person injured and to him alone, and limits the recovery to the mere amount of the loss sustained, belongs clearly to the class of remedial statutes.” Boice v. Gibbons, 8 N. J. Law (3 Hals.), 330.

The statute is remedial, and gives to the party injured compensation for the injury which he has sustained by reason of the failure to comply with a duty imposed upon the public by statute, and is not a penalty imposed upon the county for its failure to perform a statutory duty; nor a recovery that should be regarded as penalizing the public for not complying with the statute. The county, by neglecting this statutory requirement; is made liable to the party injured by its neglect, just as a private person is liable for his negligence that causes injury. We think there was no error in the court charging the jury as it did, or in refusing to charge as requested.

Now, there is one other error complained of, that the verdict is against the weight of the evidence, because there was a sufficient guard. It seems that there was some evidence that at the end of this bridge, or at the outer edge of its wing wall, the stones were placed a certain number of inches above the roadbed, and extended out from the bridge some distance. We do not have any doubt that if there had been a stone abutment built up so as to answer the requirements of this statute to protect life and property, it would have been a compliance with this statutory requirement; the county would not be required to place guard rails or stock-proof hedge fence if something else had been provided which was equally as efficient. But all we need say about that is that the question was submitted to the jury and they found against the defendant, and the verdict is not so manifestly against the weight of the evidence that we would be at liberty to disturb the verdict on that ground.

Judgment affirmed.

Spence and Metcalfe, ]]., concur.  