Without minutely examining the instructions complained of we are of the opinion that they were sound. We dispose of the case, however, on other grounds.
The record shows that the bridge and approach were on the Atlantic and Pacific highway. That particular road is specially designated as a main market road by Section 1189-1 G. C. Main market roads are state highways when taken over for improvement by the State. Section 7464. This road had been taken over by -the state, improvement was under way, and the absence of guard rails was due to their necessary removal by state employes for the purpose of making improvements. When the state took over the highway it took over the bridge, Section 1326, and in building the approach it had complete control over the method of so doing, The commissioners had no power in the premises and consequently no duty, and in the absence of a duty they had no liability. Weiher v. Phillips, 103 O. S. 249. Upon the undisputed facts the defendant below was entitled to judgment.
Middleton, P. J., and Mauck, J., concur. Thomas, J., not participating.