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sewer into which the properties claimed to be exempt were drained was constructed through private property; but no question whatever seems to have been raised in that regard. Furthermore, that sewer had been constructed and in use more than forty years when assessments were levied for a new sewer, and "was constructed in parts, portions by the city, and portions by private persons through their own property."
It is our conclusion that the lots of these defendants in error were not exempt from the assessment levied upon them and that the court of appeals was in error in awarding a perpetual injunction.
WANAMAKER, JONES, JOHnson and DONAHUE, JJ., concur.
THE BOARD OF COUNTY COMMISSIONERS OF
FRANKLIN COUNTY V. DARST.
Guard rails for county bridges, etc. - Duty of county commission
ers — Section 7563, General Code - No liability on county for negligence, when - Damages.
1. Section 7563, General Code, imposes an absolute duty upon the
board of county commissioners, requiring the erection of guard rails at the heights designated therein. When this duty has been performed there is no liability imposed upon the county under said section for negligence or for failure to use ordinary care in the erection of guard rails on other parts of an ap
proach or embankment. 2. Unless provided by statute, there can be no liability for negli
gence against the board in their quasi-corporate capacity. The
Statement of the Case.
duty imposed by said section is not limited by the discretion of the board, nor subject to the contingency that necessities may or may not require the erection of guard rails at partic
ular points on such approach. 3. Such section requires the board to erect guard rails on each
side of every embankment or approach to county bridges only at such points where the embankment or approach is more than six feet high; and for a failure to comply with the requirement of that or the succeeding section, the county may be held liable for damages resulting from such failure.
(No. 15307 — Decided April 3, 1917.)
ERROR to the Court of Appeals of Franklin county.
This action is one for personal injuries sustained by the defendant in error, Oscar L. Darst, and arose out of the alleged failure of the county commissioners to erect and maintain guard rails on the west side of the north approach to the Lockbourne road bridge in Franklin county. This bridge spans an abandoned canal at right angles, and forms a continuation of the county road running north and south. At the north end of the bridge, and for a distance of ten feet therefrom, the height of the embankment or approach is more than six feet, but from a point on the county road ten feet north of the end of the bridge the road forms a gradual declining grade until it approaches the ground-level at a point considerably more than forty feet from the north end of the bridge. Neither guard rail nor hedge fence had been erected on either side of the north approach to said bridge.
The defendant in error and one Kile were riding
Statement of the Case.
in a buggy at night and were proceeding in a southerly direction along the county road. In the vicinity of this bridge, and at a point varying from twenty to forty feet from the north end of the bridge, Kile, who was driving, veered to the west and left the highway, and, after driving but a short distance, plunged over a shelving wall which constituted part of the abutment and which extended westerly from the approach. At the point where the vehicle left the county road the embankment sloped westerly from the road to a point about two feet below its level.
These facts having developed on the trial defendant below, at the conclusion of the evidence, renewed a motion formerly made for an instructed verdict. Although requested by defendant below the court refused to give the following special charge to the jury: "If you find that the horse and buggy were driven off the approach to the bridge, then I charge you that unless you find that said approach or embankment at the place where the horse and buggy was driven off the same was more than six foot high, your verdict must be for defendant.”
In its general charge the court said to the jury that if they found “that the horse and buggy in question in which the plaintiff was riding went off of the approach to this bridge at a point where it would have been dangerous or calculated to produce personal injury either to the person or to property, why, then, it was the duty of the defendant to have erected guard rails there under the provisions of the statute.” He also charged in that connection
Opinion, per JONES, J.
that if the buggy departed from the highway "at a point where it was not necessary in order to preserve the lives or property of persons using the highways to have the same guard rails placed thereon, why in that event, there would be no liability.”
In the court of common pleas the verdict and judgment were in favor of the plaintiff, and that judgment was affirmed by the court of appeals. Upon order of this court the case was certified here for review.
Mr. Robert P. Duncan, prosecuting attorney, and Mr. William J. Ford, assistant prosecuting attorney, for plaintiff in error.
Mr. Will J. Hays and Messrs. Thomas & Hays, for defendant in error.
JONES, J. The following legal principles have been established by the decisions of this court: That the board of county commissioners are not liable at common law in their quasi-corporate capacity for damages resulting from negligence in the performance of their official duties; that in order to impose such liability for failure to perform official functions of this character, the state, by legislative enactment, must fix the terms and the measure of liability for official delinquencies; and, further, that statutes imposing such liability, being in derogation of the common law, are not to be extended beyond the plain meaning of their terms. Commissioners of Hamilton County v. Mighels, 7 Ohio St., 110; Commissioners Mor
Opinion, per Jones, J.
gan County v. The Marietta Transfer & Storage Co., 75 Ohio St., 244, and Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474.
In the interpretation of a statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition.
This action was predicated upon the failure of the board of county commissioners to comply with the following provisions of Section 7563, General Code (89 O. L., 358): “They (the board of county commissioners] shall also erect or cause to be erected, where not already done one or more guard rails on each side of every approach to a county bridge, viaduct or culvert if the approach or embankment is more than six feet high."
It is the contention of the board of county commissioners that by virtue of the provisions of this section the county is liable for failure to erect guard rails only at points of the approach or embankment where the same is more than six feet high. The claim of counsel for defendant in error, however, is that this statute extends the liability of the county to the entire length of the approach, if any part of it is more than six feet high. But if this view should not be sustained, they further maintain that if any part of the approach or embankment is more than six feet high the county commissioners are invested with a certain discretion as to how much of the approach should be protected by guard rails, and that if there be any point in the