
    (Third Circuit, Hardin Co. O., Circuit Court
    Nov. Term, 1897.)
    Before Price, C. J., Day and Norris, JJ.
    BOARD OF COUNTY COMMISSIONERS OF HARDIN COUNTY, OHIO, v. JOSEPHINE M. COFFMAN, Administratrix of the estate of FREEMAN J. COFFMAN, Deceased.
    
      County Commissioners’ liability for injury from defective bridge—
    (1) . Section 845 of the Revised Statutes imposes no new duty upon boards of county commissioners. The-duty of keeping-county bridges in repair, was a duty which.arose when such boards were created, and has continued since such boards becaine a part of our system of local government. Section . 845, provides the remedy. By it boards of county commissioners are made liable in their official capacity for injury resulting from their negligence in keeping a county bridge in repair.
    
      Same — Want of provision for fund from which to pay damages—
    (2) . A person so sustaining injury, is not precluded from recovery because of the fact that no special fund is designated or set apart against which damages thus sustained are chargeable, and out^of which the amount recovered is to be paid.
    
      Same — Threshing machines and power are ordinary burden for bridges — {Reyersed by Supreme Court.)
    (8). It is the duty of the board of county commissioners to keep county bridges in such repair as will make them safe for such burdens and traffic as ordinarily pass over them. Ordinary traction thrashing engines, impelled by their own power, are in common service and of common necessity. Passing over the public highways, as they constantly do in moving from place to place, they belong to a class of vehicles which to county bridges are ordinary burdens.
    (Reversed by Supreme Court, holding that the County Commissioners are bound only to ordinary care to keep bridges in a sale condition for all usual and ordinary modes of travel and transpoi tation. Also that it is a question for the jury whether propelling of .a traction engine by steam over the bridge was a usual and ordinary mode of travel and transportation or not. See 42 Bull. 205, 61 Ohio iSt. —.)
    Error to the Court of Common Pleas of Hardin county.
   Norris, J.

The defendant in error was the plaintiff, and the plaintiff' in error was the defendant in this case as presented to the court below.

As the administratrix of the estate of Freeman J. Coffman,deceased, the plaintiff, Josephine E. Coffman, brought her action in the common pleas of this county,to recover damages from the defendant for negligently causing the death of her decedent, Shejallegesjn her second amended petition, that a certain county road in this county crosses the Blanchard river, at which point was kept and maintained by defendant for the' purpose of travel and traffic, a public county bridge. That on the^ 5th jof July, 1895, the deceased Freeman J. Coffman, was^traveling along said road with one ordinary thrasher engine and water tank, and while passing over this bridge, at a point about the middle thereof,the bridge gave way; that Coffman went down with the bridge,and sustained injuries from which he died on the 8th of July, 1895. She says that this bridge was built of unfit, unsuitable and insufficient material. That the truss was of improper design and construction, That the cross-pieces which supported the floor were unsound and defective. That the rods by which the cross-pieces were suspended from the truss were defective. That there were no washers at the bottom of the rods under the crosspieces. That the cross-pieces rested only upon a burr at the end of each rod. That the holes through which the rods penetrated the cross-pieces were much larger than the rods, and unfilled and exposed to the weather, and that the wood around the rods become and was rotten and decayed. That at the time of this accident,' the beams and supports and timbers of this bridge, by reason of these defects in its construction, and of the improper material of which it was built, and being so exposed to the weather and rotten and decayed, were insufficient and unsafe to sustain the travel and traffic that passed over the bridge.

That long prior to the time of this accident, the defendant had knowledge of the condition of this bridge, and failed and neglected to make the same safe for public travel.

That by reason of the condition.of the bridge and the negligence of defendant in making it safe, the bridge fell and caused Coffman’s death without any fault on Coffman’s part. The petition names his next of kin, and prays for damages. To this second amended petition, defendant filed a demurrer, which was overruled by the trial court.

And thereupon defendant answered and admits the appointment etc. of plaintiff as administratrix; admits that the bridge was kept and maintained by defendant for public travel; admits that Coffman is dead; that those named in the petition are Coffman’s next of kin; but except these, denies the allegations of the petition,and says, that if Coffman was injured as claimed in the petition, it was caused wholly by his own negligence and without fault of defendant.

The issues as thus made up, were presented to a jury in the trial court at the May term of the present year, which resulted in a verdict for the plaintiff. Defendant’s motion for new trial was not allowed. Judgment was entered upon the verdict,and defendant, now as plaintiff in error,seeks to reverse the proceedings of the common pleas; and for this makes ten assignments of error in his petition in this court and in his motion for new trial in the court below.

The first reason urged is, that the common pleas erred in overruling the demurrer to the second amended petition. The demurrer questions the capacity of plaintiff to maintain the action, and asserts that the facts stated in the petition are not sufficient to constitute a cause of action. We think the court properly overruled this demurrer. One of the reasons urged by counsel for defendant why this demurrer should have been sustained is: That the duties of a board of county commissioners concern the public only; that in maintaining roads and highways and bridges, they owe no specific duty to any particular individual. That the nature of these duties are such that a failure to perform them would suggest no remedy to a citizen who suffered by the neglect. That they were to maintain this bridge and keep it safe for the public,and not for the benefit of Coffman, and if they failed, not Coffman, but the public must complain. And this being the case, he resorts to section 845 of the statutes, which gives him his remedy and makes the commissioners liable in their official capacity, for negligence in keeping bridges in proper repair. That while this statute suggests to him a remedy, gives him a right of action, it yet provides no method of compensation,and creates and authorizes no fund out of which a claim for injury is to be paid, and hence this action is futile, and to maintain it is a vain thing to do, and that there being no method of executing the judgment, then the action itself cannot be maintained. In this we do not agree with counsel.

There are no new duties imposed by section 845. By it boards of county commissioners are made liable in their official capacity for negligence or carelessness in keeping a bridge in repair. The board being created for the benefit of political society, the duty was imposed when the board was created, and has existed since such board became a part of our system of local government.

The amendment gives the citizen the' right to recovery. His claim when reduced to judgment is a claim against the county, to be paid out of the county fund, or if not that, to be paid from taxes levied for that purpose, and a refusal to levy invokes compulsion by mandamus. The responsibility attached wherever the cause existed; whether the fault was in construction or in-suffering the bridge to become dangerous, the responsibility attached because the duty existed. The statute only affords the remedy.

The petition states that the commissioners had knowledge of this defect long prior to the day the accident happened. This we deem a sufficient allegation of notice of the condition of the bridge; this is followed by the allegation that they suffered it to remain in that condition until it became rotten and unsafe and collapsed. We deem this a sufficient description of time to make the petition good,

We find no error either in the admission or in the rejection of evidence.

It is urged that Coffman was not connected with nor employed by the owner of the thrasher engine upon the tank of which he was riding when the bridge fell; that he was simply a pedestrian, and that being upon this tank, placed him in a position where all dangers were at his own risk. That the county commissioners are not common carriers for hire.

No citizen can become a trespasser while he is legally upon and properly conducting himself upon the public highway. Coffman might have been a trespasser upon that tank, had he placed himself there without the onwer’s consent; but the testimony shows he was there with the owner’s permission, and rightfully there. He assumed no risk by riding on the tank so far as defendants are concerned, unless he had knowledge or reason to believe that the bridge was unsafe, but this the testimony fails to establish. Why should he be required to know of this, when those whose duty it was to know- did not know? This man was where hs had a right to be, riding upon a machine the like of which has become and is of ordinary use, and which are every day and of necessity moving from one farm to another over our public higwhays. That thrasher engines were of common use in Hardin county; that they were a necessity;, that they were being moved every day .along the highways and over the bridges, was a fact to which the commissioners could not shut their eyes. That it was their duty to keep the bridges safe for such vehicles as ordinarily passed over them, was a fact to which they could not render themselves oblivious. The testimony clearly shows that they had earning that this bridge was unsafe; they were so informed by several witnesses, indeed they even went so far as to repair a part of this same bridge, and while they did this, the testimony shows that to the weakest part, to the part most likely to rot and give way, they paid no attention. They made no inspection; standing off twenty-five feet and looking at one side of a stick of timber is no examination at all.

A careful and critical examination of a structure of that kind, by a man skilled and competent to do so, who knows enough to look at all of it, the weak places as well as the strong, is only ordinary care. In this, the commissioners were negligent, and negligent with notice, or with ample means and opportunity to know of the condition of the bridge long enough before the accident to have made it safe.

As to the special requests to charge, the first and second do not, as we think, properly state the law. Absolute knowledge upon the part of the commissioners as to the condition of the bridge, was not necessary. If they could have known by use of ordinary care, is sufficient.

We do not think the third request is pertinent to the issues

As to the fourth, we do not agree with counsel that bridges upon public highways are only made for ordinary wagons and teams with their loads, but think that a bridge with an ordinary thrasher engine crossing it, is bearing in these days an ordinary burden only.

The fifth request was given substantially in the charge as given.

The sixth request which goes to Coffman’s right to ride upon the tank is not the law, and as a whole, was properly refused.

The seventh, which fixes the 13th of April, 1894-r-the date of amendment of section 845 — as the beginning of defendant’s liability for negligenece, we do not think is the law of this case.

As to the eighth, the part of it which is the law, was in substance given.

We find no error in the charge, nor in the refusal to charge.

John stillings, for Plaintiff in Error.

Crow & Durbin and George E. Crane, for Defendant in Error.

We find that the verdict is sustained by the evidence. We find that the damages are not excessive, and that there are no errors in the record.

Judgment affirmed at costs of plaintiff in error, and case remanded for execution.  