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Opinion, per JONES, J.
approach that is dangerous or calculated to produce injury it is the duty of the commissioners to erect guard rails at such point, and a failure to do so would render the county liable. This latter view was manifestly taken by the trial court, for in that connection it charged the jury “that if the necessities would require the entire approach to that bridge to have guard rails placed upon them in order to obviate injuries to persons lawfully using the highway at that point, why then it would be the duty of the commissioners to construct guard rails along the entire approach to the bridge." In so charging the court erred. The duty imposed on the board by Section 7563, General Code, is absolute, not relative. It is not limited by the discretion of the board, nor is it subject to the contingency that the necessities may or may not require the erection of guard rails at particular points on the approach; nor is the duty imposed at such places as the jury may find to be dangerous or calculated to produce injury. Under the charge given, the inquiry would necessarily involve the issue, Did the board, under the circumstances, use ordinary care in its determination of the question whether or not certain portions of the approach required the erection of guard rails? There is no common-law liability for negligence in this connection. The only liability therefor is that fixed in a supplementary section, which makes the county liable for failure of the board to comply with the duties prescribed in Section 7563, General Code. And whichever of the following constructions may be adopted, this duty cannot be obviated by a de
Opinion, per Jones, J.
fense that it is only imposed at places and under circumstances contemplated in the charge of the court.
The petition was based upon a fixed duty imposed by the section named, and contained no allegation of neglect or failure to ereçt guard rails at points on the approach that were dangerous or calculated to produce injury. The section must be construed so as to require the commissioners either to erect guard rails at those points only where the approach or embankment is more than six feet high, or so as to require their erection at every point along the entire approach, although the greater portion thereof may be but little higher than the level ground. The section referred to also requires protection by suitable guard rails of all perpendicular wash-banks, more than eight feet in height, along public highways. It is common knowledge that many of these approaches, embankments and wash-banks are of great extent and usually form a gradual decline which extends for considerable distance but a few inches above the level. To insist that the whole extent of these should be protected by guard rails would be reductio ad absurdum, and a grave test upon the public funds. This could not have been the legislative intent. At any rate it would be of such doubtful and ambiguous import, that under the rule stated, the doubt should be resolved in favor of the public. It is evident from the whole scope of the statute that the legislature intended to protect only those places designated by it peculiarly as points of danger. It required the erection of guard rails
Opinion, per JONES, J.
on county bridges, viaducts and culverts where the same were more than five feet high. It required suitable guard rails at all perpendicular wash-banks more than eight feet in height. And so when the statute imposed the duty upon the county commissioners to place guard rails on approaches or embankments more than six feet high, the legislature evidently had the intention to protect these fixed points of danger.
It is conceded by the facts in this case that the defendant in error diverged from the public highway at a point where the approach or embankment sloped to a level a foot and a half to two feet below the surface of the roadway, although there is some testimony to the effect that the roadway at this point was but little higher than the ground level.
In the view we have taken construing this section of the code, the court should have instructed the jury to return a verdict for the defendant at the conclusion of the evidence. It also erred in refusing to give the special charge requested, and in its general charge imposing a duty upon the defendant to erect guard rails at any point where it would have been dangerous or calculated to produce personal injury.
The judgments of the lower courts are reversed, and judgment in this court is rendered in favor of the plaintiff in error.
Judgments reversed. Nichols, C. J., NEWMAN and Johnson, JJ.,
Matthias and DONAHUE, JJ., concur in second proposition of syllabus.
Opinion Per Curiam.
The BOARD OF COUNTY COMMISSIONERS OF
FRANKLIN COUNTY v. KILE.
Bridges and approach — Guard rails — Provisions of Section 7503,
General Code - No liability on county for negligence, when -
(No. 15308 — Decided April 3, 1917.)
ERROR to the Court of Appeals of Franklin county.
Mr. Robert P. Duncan, prosecuting attorney, and Mr. Wm. J. Ford, assistant prosecuting attorney, for plaintiff in error.
Mr. Will J. Hays and Messrs. Thomas & Hays, for defendant in error.
BY THE Court. This is a companion case to No. 15307, Board of County Commissioners of Franklin County v. Darst, reported ante, 163. Both cases were submitted and argued at the same time. The evidence in both cases was substantially the same. The defendant in error, R. Alvah Kile, was the driver of the horse and buggy. In the instant case the trial judge did not inject into his charge the question of negligence, as in the Darst case. However, he refused the following special instruction requested by the defendant at the trial:
“I charge you that the defendants were not required to erect any guard rail along the west side of the approach to this bridge unless you find that said approach was more than six foot high, and unless you find that said approach at the place
where plaintiff drove off the same was more than six foot high, your verdict will be for the defendant.”
For the reasons given in the Darst case, supra, a refusal to give such request was error.
On consideration whereof the judgments of the lower courts are reversed on the authority of the Darst case, supra, and proceeding to render the judgment that should have been rendered on the undisputed facts judgment is rendered in this court in favor of the plaintiff in error.
Nichols, C. J., NEWMAN, Jones and JOHNSON, JJ., concur.
THE STATE, EX REL. TAYLOR, v. FRENCH ET AL.
Elective franchise-Qualifications of electors-Section 1, Article
V, Constitution-Powers conferred upon municipal corporations Article XVIII, Constitution, 1912– Limitations of city charter-Validity of provisions for woman suffrage-in municipal elections Constitutional law.
1. The provisions of Section 1, Article V of the Constitution,
which prescribe the qualifications of electors, control in all elections held to fill offices which the Constitution itself has provided for, and in all elections upon questions submitted to a vote pursuant to provisions of the Constitution; and such qualifications can be altered only by amendment to the Con
stitution. 2. The Constitution itself having by Article XVIII committed to
any municipality the power to frame and adopt a charter for its government and to exercise thereunder all powers of local self-government, subject to the limitations expressed in that article, a provision in the charter of a municipality, adopted in