21 Ohio C.C. (n.s.) 273 | Ohio Ct. App. | 1915
This is a proceeding in error to reverse a judgment of the court of common pleas in sustaining a demurrer of the defendants, the commissioners of Hamilton county, to an amended petition of plaintiff, Josephine Whitney, and dismissing said defendants at the plaintiff’s costs.
Briefly stated, the plaintiff’s petition and amended petition counted on negligence of the defendants as joint tort feasors, whereby she suffered grave personal injuries while driving a horse and buggy along the Lawrenceburg and Harrison road in Whitewater township, Hamilton county. After setting out the official capacity of the commissioners and that said road was, at the time of the happening of the events related, a county road in Hamilton county and within the jurisdiction and under the control of said commissioners, plaintiff further
A demurrer to this amended petition was interposed below by the defendants, the commissioners of Hamilton county, on the ground that the averment's thereof did not state a cause of action against the demurring defendants.
The demurrer was sustained, and the plaintiff not desiring to plead further as to the defendant com
The case is now in this court on error for a reversal of said judgment on the ground that the demurrer should have been overruled and not sustained. At the outset it is claimed by the prosecuting attorneys, who officially represent the commissioners, and conceded by counsel for plaintiff in error, that the commissioners are not liable for these injuries of plaintiff, however negligent they may have been, unless there is a liability imposed by statute.
Section 2408, General Code, does impose a- liability on the commissioners of a county in their official capacity for damages received by reason of their negligence or carelessness in not keeping any public, state or county road or bridge in proper repair. This law was enacted in 1894, prior to which time no liability attached to the board of commissioners for any injuries or damages sustained by reason of its neglect to keep the highways or bridges under its control in proper repair. No right of action at common law could be maintained for such negligence, and the liability being statutory the statute must be strictly construed in favor of the county officials.
Now it is contended by counsel for defendants in error that the amended petition of plaintiff is fatally defective and open to demurrer because of the failure to aver, first, that the county road in question was an improved road; second, that the board of commissioners had notice of the defective condition, either actual or constructive; third, that it fails to aver that the ditch or trench complained
In view of the fact that this proceeding is one to review the action of the court below, we have considered the claims of counsel as though presented in the order made on the arguments on the demurrer in the court of common pleas.
As to the first contention of counsel for the. commissioners, the court believe it is sufficiently answered by calling attention to the language of the statute, Section 2408, which imposes a liability on the commissioners in their official capacity for damages received by reason of their negligence or carelessness in not keeping in proper repair any public, state or county road or bridge. The liability is not limited to damages arising from failure to keep in repair improved county roads only, and therefore no averment that the road was an improved county
As to the absence of an averment of notice, actual or constructive, to the commissioners, of the existence of the ditch, it is true that for an ordinary defect in the highway caused by the wearing away of the surface and not caused by an act of commission of the public authorities, notice of the existence of the defect must be averred, or allegations must be set out showing the length of time the defect has existed, so that constructive notice may be inferred; but where the defect is in the original plan of the work or in the construction by the public authorities, no notice need be averred, as the public authorities are, in such cases, the original wrongdoers. See City of Alliance v. Campbell, 17 C. C., 595 (affirmed without opinion, 53 Ohio St., 650); Village of Groveport v. Brad
The amended petition and the petition aver in the case at bar that the defect in this road was caused by the negligent act of commission of the commissioners in the original construction of this work of improvement and repair.
The third claim of counsel for defendant is that the amended petition fails to state that the alleged defect, the ditch or trench, was in the traveled portion of the roadway, and that inasmuch as no liability attaches to the commissioners for defects outside of the traveled way, the amended petition fails to show a case of actionable negligence.
It is true that our courts have held in several cases that the board of commissioners are not liable for injuries to persons or property caused by defects in the county or public roads outside of the-improved or traveled way; but in the case at bar it is averred that this ditch or drain was dug along the side of the county road, within its limits and at a point where the Whitney road intersects it, and across the face of the said Whitney road. Now the public traveling along the Whitney road had a right to enter this county road at the terminus of the township road, and if a ditch or pitfall was constructed across the terminus of this township road at the place where it intersects the county road, it would appear to be in a portion of the traveled way of this Lawrenceburg and Harrison road; it was apparently on that portion of the traveled way of said road which had to be passed over by those who entered or passed off the Whitney road; it was not at a place where no one would ordinarily have oc
As to the claim that the rule of respondeat superior does not apply to the county commissioners, it may be said that neither the amended petition nor the petition disclose that this ditch or trench was dug by an independent contractor, but so far as the averments of the pleadings disclose, the work was being prosecuted by the commissioners. It was held by this court in the case of Commissioners of Clermont Co. v. Judd, on error to the common pleas court of Clermont county, that the board of county commissioners are liable in their official capacity for damages resulting from their negligence in failing to keep a county road in proper and sufficient condition for reasonably safe use by the public, and if obstructions are carelessly or negligently placed thereon, either by the county commissioners, their agents or employes, thereby blocking or obstructing the traveled portion thereof, it would be a failure to perform their duty to keep the road in repair, and would render the county commissioners liable for the injurious consequences resulting from such failure of duty. In that case the commissioners of Clermont county were repairing a portion of the Ohio Turnpike and for that purpose had deposited along the traveled portion of said road a pile of screenings which caused an obstruction in the road and into which the plaintiff, Mabel Judd, ran while driving a horse and buggy along the road in the nighttime, there being no barriers, lights or safeguards to warn her of the obstruction. She
The court is of the opinion that the ruling of the common pleas court in sustaining the demurrer to the amended petition was erroneous, and the judgment dismissing the defendants, the board of county^ commissioners of Hamilton county, is prejudicial to the plaintiff in error, and said judgment is hereby reversed.
It is but fair to the judge who passed upon the demurrer to the amended petition to say that after his decision his attention was called to the case of
Unfortunately for the plaintiff in error this conclusion was reached by the trial judge after the expiration of the term at which the entry was put upon the record sustaining the demurrer to the amended petition, and inasmuch as the trial court had no power to set aside a former judgment or entry made at a previous term, he was unable to
For the reasons stated herein, the judgment of the common pleas court will be reversed and the cause remanded for such proceedings as are authorized by law.
Judgment reversed and cause remanded.