I feel it my duty to give expression to my views of this case.
It seems that the plaintiff in error, plaintiff below, as administratrix, brought an action against the county commissioners to recover for the death of her husband by reason of the automobile in which he was a passenger coming in contact with a pile of broken stones that was placed upon the county road within the county of Cuyahoga.
If the county commissioners are liable at all they are responsible by virtue of Section 2408, General Code, which reads as follows:
"The Board of County Commissioners may * * * be sued * * * in any court of judicature, * * * and defend all suits in law or in equity, involving an injury to any public, state or county road, * * * established by such board in its county * * *. The boardshall be liable in its official capacity for damages received byreason of its negligence or carelessness in not keeping any suchroad or bridge in proper repair * * *."
Now it is conceded that this statute is in derogation of common law and must be strictly construed, for we must remember that, but for the statute, the county being a division of the state is not responsible except to the extent that it is made responsible by statute. That apparently was the view the court below took of this case, for on an objection to the introduction of any testimony on the ground that the petition did not state a cause of action, the objection was sustained, the petition dismissed, and judgment entered for the county commissioners. And it is to reverse that judgment that error is prosecuted here.
The petition did not allege that the county commissioners *Page 264 had failed to keep the road in repair, nor did it state that the injury resulted from failure to keep in repair, but alleged in other words that a pile of crushed stone had been placed upon it for the purpose of repairing a culvert, that plaintiff's decedent ran into this pile of stone, and that death resulted therefrom, so the question is whether the county commissioners, without a statute making them liable, are liable for obstructions that are placed upon the highway either by contractors, by private individuals, or by themselves.
There is nothing in this petition, and there is nothing in this record, to show that this road was not in repair. For all intents and purposes the road was a perfectly smooth road, and the culvert, which they meant to enlarge, reconstruct, or rebuild, had not been disturbed in any way: it was not out of repair within the meaning of the term as used in the dictionary and other books. The only difficulty was that the highway was obstructed by this pile of stone on it, and so the proposition narrows itself down to the single question whether the county commissioners can be made liable by adding to the liability prescribed in the statute. If this were a municipality, where the city is made liable for the safety of the streets, for defects, for obstructions, or for any nuisance which may appear upon the street, why, of course, there would be no question. If the obstruction were there long enough for the city to notice it, it would be responsible, even though it did not put it there. Not so the county. So far as we know, this pile of stones may have been placed there by a contractor who was an independent contractor, the county having nothing whatever to do with it; and *Page 265 how it could be said that the road had not been kept in repair when there were no defects in it, is a little difficult to understand.
It is argued that the case of Whitney v. Niehaus, 4 Ohio App. 208, is authority for the proposition that the county commissioners are liable. Whether or not that ever was the law in the state, it is not the law now.
We think the case of Weiher v. Phillips, 103 Ohio St. 249,133 N.E. 67, is the last pronouncement of the Supreme Court upon this question, and if the Whitney case ever was the law it was overruled in 103 Ohio State. The first proposition of the syllabus in that case reads:
"A board of county commissioners is not liable in its official capacity for damages for negligent discharge of its official duties except in so far as such liability is created by statute, and such liability shall not be extended beyond the clear import of the terms of the statutes."
This proposition is in accordance with all the constructions that have been placed upon statutes that are in derogation of the common law.
It is argued by the plaintiff in error that this case is onlydicta. We do not so view it. The paragraph quoted above is from the syllabus. It is true that the highway in question was under the control of the state, and the court could have stopped there perhaps, but the county was sued and the proposition that was laid down in the first syllabus is clearly within the case.
It seems in that case that a certain highway was being improved by the state highway commission, that a contract had been let for the work, that a *Page 266 brick barrier had been built across the road, and that the party was injured by trying to avoid this barrier and running into the ditch; but Chief Justice Marshall in this case used some very significant words:
"We have so far proceeded in this opinion upon the theory that the accident was due to a failure to keep this road in proper repair. A critical analysis of the allegations of the petition will disclose, however, that the accident was not primarily due to the defective condition of the road. The automobile did not run into a defect due either to improper original construction or to failure to keep the roadway in proper repair. It is true that this road, according to the allegations of the petition, was not in proper repair, but according to the same allegations the road was being repaired and by the authorities whose duty it was to make such repairs.
"The petition alleges that `in making said repairs the road was obstructed and made impassable by a wall of bricks, 5 or 6 tiers high, which were carelessly and negligently piled, and placed across the entire width of said road at the western terminus of the paved part of the road as aforesaid, thereby forming a barrier and obstructing the use of said road for all traffic at said point,'" etc.
Now it will be seen from this quotation from the opinion of Chief Justice Marshall that a road must not only be out of repair, but the being out of repair must have been the proximate cause of the injury; that a barrier placed across the road, which was much more serious than the obstruction in the instant case, was not such a violation of the statute, although the road was out of repair in that case; *Page 267 but it did not appear from the petition that that was the cause of the injury. By a parity of reasoning it must be that if a road is not out of repair, but in perfect repair, and if an obstruction is placed upon the road, there cannot be a recovery against the county commissioners in their official capacity; and the above is what the petition sets up in the instant case, and consequently I do not see under what circumstances there could be a liability in the instant case, and the court below in construing this petition found that it nowhere contained any allegation that the road was not in repair and by reason of these defects in the highway this injury was caused. So the petition did not state a cause of action, and consequently the court was right in rendering judgment as he did.
There have been cited to us cases in West Virginia and Pennsylvania which would seem to imply that keeping in repair means the removal of obstructions, or keeping them off the street, but on an examination of the authorities in those states, one will find that in these cases the city had by ordinance authorized the occupation of its streets, provided they were kept in repair by the railroad, and this would raise a different situation than in the instant case, and the liability would be different.
Feeling as I do about this case, I cannot help but come to the conclusion that the court below was right, and, so far as I am concerned, the judgment should be affirmed. *Page 268