ACTION AGAINST COUNTY COMMISSIONERS ON ACCOUNT OF DEFECT IN HIGHWAY.

Circuit Court of Guernsey County.

#### Guernsey County Commissioners v. Samuel Black.*

Decided, November 13, 1911.

*Constitutional Law*— Validity *of Act Permitting Impanneling from Adjoining County in Action Against County Commissioners*— Actual *Notice of Defect in Highway*— Not *Necessary to Render County Commissioners Liable*— Lack *of Funds to Repair Defect in Highway a Matter of Defense*— Not *Negligence to Drive on Edge of Macadamised Road.*

1. Section 11418-1, as amended (102 O. L., 41), permitting a jury to be drawn from an adjoining county in an action against the county commissioners, is a constitutional enactment and applies to a suit brought before its passage, there being no vested right in a remedy.

2.i Actual notice of a defect in a highway is not necessary to establish liability against county commissioners in an action for injuries suffered because of such defect, if constructive notice of such defect is shown.

3. While lack of funds with which to repair a highway may be made a matter of defense in an action against the county commissioners for injuries, it is defensive matter only and the petition need not aver that funds were available for repair of the defect.

4. A person traveling along a highway is not chargeable with contributory negligence in permitting the wheels of one side of his vehicle to get just outside of the macadamized part of the road, where a hole existed into which the wheels dropped causing the accident complained of.

*G. F. Sheppard,*lor plaintiff in error.

*J. S. Black,*contra.

*

 Affirmed without opinion, *Guernsey County Commissioners*v. *Black,*88 Ohio State, 587.

Metcalfe, J.

This action was brought to recover damages claimed to have been suffered by the defendant in error — plaintiff below — by *416reason of a defect in the highway known as the National Road. Mr. Black recovered a judgment in the common pleas court, and error is here prosecuted. Several grounds of error are alleged:

First, it is claimed that there is no liability on the part of the commissioners, as shown by the petition; the verdict is against the weight of the evidence; that the law under which the jury was drawn, and the case tried, is unconstitutional, and that there is error in the charge of the .court.

In the limited time that I have I can not discuss these questions to any great extent, but will only call the attention of counsel to the points that we think are decisive. Whether or not there was any liability on the part of the commissioners as shown by the facts stated in the petition, is a question that this court has passed upon once, and we do not feel at this time that we are called upon to reverse the decision that was made at that time, and that is all that we care to say upon that question. See *Blacky. Guernsey County Commissioners,*13 C.C.(N.S.), 252.

Is the law (General Code, 11418-1, amended 102 O. L., 41) under which the jury was drawn in this case unconstitutional? The law provides that where the county commissioners and some other officers which are named are parties to an action, a jury may be drawn from another county, and that was done in this case, the jury having been drawn from Muskingum county. We think, without entering upon a discussion of that question, that the Supreme Court has settled it in *Snell*v. *Railway, 60*Ohio St., 256, in which the law authorizing a change of venue in cases where a corporation having more than fifty stockholders resident of the county is a party, settles that question. We think that case is decisive of the constitutionalicy of this law, and it is not necessary to discuss it more.

Counsel still say, however, that in the event the law is constitutional, it should not apply here because it was passed after this case was commenced; that they have a vested right in the remedy which was in force at the time — that is, which was provided for by the statute at the time the action was commenced. Impanneling a jury is part of the procedure by which the machinery of justice moves. It relates only to the method by which the remedy is administered. By changing it the right of a party *417to sue or defend is not affected. Ilis substantial rights are not changed. We think a party can not acquire a vested right in a remedy, or any part of it. *Lawrence Ry.*v. *Mahoning County Commissioners,*35 Ohio St., 1; *Templeton*v. *Kraner,*24 Ohio St., 554, 563; *Rairden*v. *Holden,*15 Ohio St., 207, 211.

It is claimed also that the court erred in its refusal to charge a request which was offered on the part of the defendant, in which — without stopping to read it all — the court is asked to charge the jury that if they found that there was a defect in the highway, and that that was the proximate cause of the accident, still they would not be liable unless the jury also found that the commissioners had actual notice of the defect. We do not think that states the law. An actual notice was not absolutely necessary. The facts and circumstances might be of such a character that the commissioners might be required to take notice, although they did not have actual notice. I observe, however, in going through the charge that this request is substantially given in the charge, so that there would be no error in failing to give it, anyway.

Again, it is urged that there must have been an allegation in the petition in this case that the commissioners had funds in the treasury, and at their disposal, with which to make repairs upon this road. We do not have any doubt, after having consulted the authorities upon that question, that the fact that the commissioners had no funds with which to make repairs upon the road, or had no means of procuring funds, is a defense to a cause of action arising out of an accident for failure to repair a country road. But when the plaintiff states his cause of action must he allege that the commissioners, or the proper officers, have provided and have under their control sufficient funds to meet the necessary repairs, or is it a defense ? In our judgment it is a defense, and must be plead and proved by the commissioners. And upon this question we call the attention of counsel, as sustaining that proposition, to *Hover*v. *Barkhoof,*44 N. Y., 113, 118, in an action similar to this. The same doctrine is also held in *Hines*v. *Lockport,*50 N. Y., 236, and counsel will find a collection of the authorities in 15 Am. & Eng. Enc. Law (2d .Ed.), 412, upon that question.

*418The question in this ease which bothers us the most, and which we had given the most consideration, is whether or not upon the evidence in this case the plaintiff is entitled to recover. It appears that Mr. Black was driving upon the highway, and driving a horse that was somewhat restive, and he met an automobile. He raised his hand to the driver of the automobile to stop, and he did stop upon the north side of the highway. Something like 200 feet beyond where the automobile stopped, and in the direction which Mr. Black was going, there was this defect in the^ highway; and it is shown that there was a substantial defect there; where the culvert had crossed the highway, and outside of the traveled part of the highway, but in the graded part, it had fallen down, and there was a hole. He drove on; and when he passed the automobile he passed upon the south side of the road, but afterwards drove upon the north side. He says his horse was under control at the time. He passed along upon the north side of the road, either his horse very close to the side of the macadam — perhaps in the wheel track, or his right wheel in the wheel track — at any rate, very close to it, when the left wheel of the buggy went into this culvert, and he was pitched out and received some injuries.

Now, in a case of this bind it is urged that the rule that where a party departs from the known safe path, and takes another path, and is injured, that he must stand the consequences of his injuries. But where you are upon a traveled road what is the safe path? Is it simply a path — a roadway eight or ten or fifteen feet wide, as the case may be, upon which are the wagon tracks, or wheel tracks, that are made by continuous travel; and if you get a foot or a foot and a half outside of that are you guilty of contributory negligence? And that is the question here..

Now, this man, Mr. Black, was very close, evidently — very close to the traveled part of the highway, and the wheels upon one side of his buggy were only off from it when he went into this hole. Under such circumstances we do not feel we can say he was guilty of contributory negligence; and under the evidence and the law of the case we are inclined to think that the judgment should be affirmed, and that is the judgment of .this court.

Pollock, J., and Norris, J.; concur.