#### Ebert *v.*Commissioners of Pickaway County.

*Liability of county commissioners*— For *negligence in keeping road or bridge in repair*— Section 84s, *Revised Statutes*— Interpre*tation of statute*— Commissioners *not liable for damages from stone pile, when.*

Consistently with the rule that statutes in derogation of the common law should not be extended beyond the natural meaning of their terms, the amendment of April 13, 1894, of Section 845 of the Revised Statutes that “any such board of county commissioners shall be liable in its official capacity-for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair” can not be interpreted as creating a liability for injuries sustained by one whose horse takes fright at stones which the commissioners had collected by the road-side for the purpose of repairing a road or bridge there being no defect in either road or bridge contributing to the injury.

(No. 9871

Decided January 22, 1907.)

Error to the Circuit Court of Pickaway County.

*475Plaintiff brought suit against the commissioners in the court of common pleas to recover on account of personal injuries which had resulted to her from being .thrown from her buggy when her horse was running away, it having taken fright at stones which the commissioners had caused to be collected at a bridge on a pike controlled by the defendants. Her petition alleges that the horse was gentle, that it took fright at rows of large sandstone blocks which had been piled upon either side of the highway near the bridge, the piles being within eighteen feet of each other, alleging that the commissioners “thereby rendered said highway out of repair and unsafe for public travel.” The petition alleges no defect in either the highway or the bridge. In the court of common pleas a demurrer to the petition was sustained and the petition was dismissed. That judgment was affirmed by the circuit court.

*Mr. George B. Bitser; Messrs. Abernethy & Fulsom*and *Mr. Frank N. R. Redfern,*for plaintiff in error, cited and commented upon the following authorities:

*Riggs, Gdn.,*v. *Palmer et al.,*115 N. Y., 506; 12 Am. St., 819; *Barrett & Caswell*v. *Pulliam,*77 Ga., 552; *Steere*v. *Brownell,*124 Ill., 27; *Henry & Coatsworth Co.*v. *Evans et al.,*97 Mo., 47; *Bennett*v. *American Express Co.,*83 Me., 236; 23 Am. St., 774; *Barbour*v. *City of Louisville,*83 Ky., 95; *Funk, Admx.,*v. *St. Paul City St. Ry. Co.,*61 Minn., 435; 52 Am. St., 608; *Harris*v. *Reynolds et al.,*13 Cal., 514; *Nelson*v. *State,*111 Wis., 394; 87 Am. St., 881; *Admx. of Tracy**476v. *Admr. of Card,*2 Ohio St., 431; *Lessee of Burgett*v. *Burgett,*1 Ohio, 480; *State, ex rel.,*v. *Harmon,*31 Ohio St., 250; *Moore*v. *Given,*39 Ohio St., 661; *Johnson*v. *State,*42 Ohio St., 207; *Cincinnati Gas Light & Coke Co.*v. *Avondale,*43 Ohio St., 257; *Sawyer*v. *State, ex rel.,*45 Ohio St., 343; *Henry*v. *Trustees,*48 Ohio St., 671; Endlich on Interpretation of Statutes, Section 295; *Cross*v. *Armstrong,*44 Ohio St., 613; *State, ex rel.,*v. *Brewster, Auditor,*44 Ohio St., 249; *Billings*v. *Dressler et al., Commissioners,*5 N. P., 114; *Reading Township*v. *Telfer,*57 Kan., 798; *Baker*v. *North East Borough,*151 Pa. St., 234; *Morse et al.*v. *Town of Richmond,*41 Vt., 435; Section 41, Chapter 25, Vermont Statutes; *Bennett*v. *Fifield, Treas.,*13 R. I., 139; *Winship*v. *Enfield,*42 N. H., *197; Chamberlain*v. *Enfield,*43 N. H., 356; *Bartlett et al.*v. *Hooksett,*48 N. H. 18; *Dimock*v. *Town of Suffield,*30 Conn., 129; *Ayer*v. *City of Norwich,*39 Conn., 376; *Young*v. *City of New Haven,*39 Conn., 435; *Foshay*v. *Town of Glen Haven,*25 Wis., 288; *Hewison, Admx.,*v. *City of New Haven,*34 Conn., 136; Section 1442, How. Stat.; *Nye*v. *Dibley et al.,*93 N. W. Rep., 524; *York*v. *Inhabitants of Athens,*58 Atl. Rep., 418; *Clinton*v. *Howard et al.,*42 Conn., 294; *North Manheim Township*v. *Arnold,*119 Pa. St., 380; *Wilson*v. *Town of Spafford,*57 Hun., 589; *Kelsey*v. *Town of Glover,*15 Vt. 708; *Burrell Township*v. *Uncapher,*2 Am. St., 664; *Commissioners*v. *Sisson,*28 N. E. Rep., 374; *Card et al.*v. *City of Ellsworth,*65 Me., 547; *Hixson*v. *Burson et al.,*54 Ohio St., 485; *State, ex rel.,*v. *Davis et al.,*55 Ohio St., 22; *State*v. *Bader et**477*al., Commissioners,*56 Ohio St., 720; *Mott et al.*v. *Hubbard, Treas., et al.,*59 Ohio St., 211; *State, ex rel.,*v. *Buckley et al.,*60 Ohio St., 273; *Village of Cardington*v. *Admr. of Fredericks,*46 Ohio St., 442; *Smith*v. *Sherwood Township,*62 Mich., 159; *Monongahela City*v. *Fischer,*111 Pa. St., 9; *Kingsbury*v. *Inhabitants of Deadham,*13 Allen, 186; *Hubbard*v. *City of Concord,*35 N. H., 52; *Upton*v. *Town of Windham,*75 Conn., 288; 53 Atl. Rep., 660; Shearman & Redfield on Negligence, Section 369a; 1 Harris on Damages by Corps., Section 87, p. 99; Elliott on Roads and Streets, pp. 449 and 450; Black’s Law & Prac., Accident Cases, Section 44; Thomas on Negligence, 1150 and 1151: 2 Dillon on Municipal Corps., Section 1011; 4 Am. & Eng. Ency. Law, 27; *Commissioners*v. *Mighels,*7 Ohio St., 109; *Alexander et al., Commissioners,*v. *Brady,*61 Ohio St., 174; *Commissioners*v. *Coffman, Admx.,*18 C. C., 254; 60 Ohio St., 527; *Chicago, etc., Ry. Co.*v. *Leachman,*161 Ind., 512; 69 N. E. Rep., 253; *Neal*v. *Wilmington, etc., Electric Ry. Co.,*53 Atl. Rep., 338; *Pittsburg, etc., R. R. Co.*v. *Maurer,*21 Ohio St., 421; *Trustees of Burton Township*v. *Tuttle et al.,*30 Ohio St., 64; *Little Miami R. R. Co.*v. *Commissioners,*31 Ohio St., 338; *Cincinnati & Harrison Turnpike Co.*v. *Hester,*12 C. C. 350; 5 C. D., 185; *Lawrence R. R. Co.*v. *Commissioners,*35 Ohio St., 1; Sections 845, 1536-131 and 4889, Revised Statutes.

*Mr. Charles '. Gerhardt,*prosecuting attorney, and *Mr. Clarence Curtain,*for defendants in error, cited and commented upon the following authorities:

*47816 Ency. Law, 1st Ed., 415; *Alexander et al., Commissioners,*v. *Brady,*61 Ohio St., 178; *Commissioners*v. *Mighels,*7 Ohio St., 109; *Finch*v. *Board of Education,*30 Ohio St., 47; *Dunn*v. *Agricultural Society,*46 Ohio St., 93; *State, ex rel.,*v. *Commissioners,*11 Ohio St., 190; *Brower et al.*v. *Hunt et al.,*18 Ohio St., 341; *Agnew*v. *City of Corunna,*55 Mich., 428; 54 Am. Rep., 383; *McArthur*v. *City of Saginaw,*58 Mich., 357; 55 Am. Rep., 687; *Monongahela City*v. *Fischer,*111 Pa. St., 9; 56 Am. Rep., 241; *Hubhard v. City of Concord,*35 N. H., 52; 69 Am. Dec., 520; *Kingsbury*v. *Inhabitants of Deadham,*13 Allen, 186; 90 Am. Dec., 191; *Pittsburgh, etc., R. R. Co.*v. *Pittsburgh,*80 Pa. St., 72; Century Dictionary, Vol. 6, 5080; Cooley on Torts, 617; *Schroeder*v. *Multnomah County,*76 Pac. Rep., 772; *McFerren*v. *Umatilla County,*27 Ore., 311; 40 Pac. Rep., 1013; *Morse et al.*v. *Town of Richmond,*41 Vt., 435; *Chamberlain*v. *Enfield,*43 N. H., 356; *Hewison, Admx.,*v. *City of New Haven,*34 Conn., 136; *City of Vandalia*v. *Huss,*41 Ill. App., 517; *Foshay*v. *Town of Glen Haven,*25 Wis., 288; *Sharp*v. *Township of Evergreen,*35 N. W. Rep., 69; *Bartlett et al.*v. *Hooksett,*48 N. H., 18; *Nye*v. *Dibley,*93 N. W. Rep., 524; *York*v. *Inhabitants of Athens,*58 Atl. Rep., 418; *North Manheim Township*v. *Arnold,*119 Pa. St., 380; *Card*v. *City of Ellsworth,*65 Me., 547; *Commissioners*v. *Coffman, Admx.,*18 C. C., 254; 60 Ohio St., 527; *Village of Cardington*v. *Admr. of Fredericks,*46 Ohio St., 442; *Trustees*v. *Tuttle et al.,*30 Ohio St., 62; *Pittsburgh, etc., R. R. Co.*v. *Maurer,*21 Ohio St., 421; *Little Miami R. R. Co.*v. *Commissioners,*31 Ohio St., *479338; *Cincinnati & Harrison Turnpike Co.*v. *Hester, 12*C. C., 350; Sections 845, 4889, 4891, 4941-1, 4941-2 and 4941-3, Revised Statutes.

Shauck, C. J.

It is conceded that the judgments below are right unless the facts alleged in the petition bring the case within the amendment of Section 845 of the Revised Statutes, passed April 13, 1894 (91 O. L., page 142), creating and defining a liability of the county commissioners for negligence. Prior to that date it was recognized as established by repeated decisions that there was no such liability on the commissioners or the county for any negligence of the commissioners. A limited liability was then imposed by the amendment of the statute defining the duties and powers of the commissioners, the pertinent portion of the amendment being: “And any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair.” The scope of this amendment was under consideration in *The Board of County Commissioners of Morgan County*v. *The Marietta Transfer & Storage Company, ante,*244, where it was held, for obvious reasons, that, the amendment is within the rule that statutes in derogation of the common law should not be extended beyond the plain meaning of their terms. Without repeating what was there said in support of that view it may be taken as the correct view of the scope of this amendment. The liability which the legislature has created is for negligence or carelessness in keeping a road or *480bridge in proper repair. No broader effect can be given to the amendment without disregarding the rule stated.

The petition contains no allegation that either the road or bridge was out of repair or in a defective condition, unless we depart from the established rules of pleading and give effect to an averment which is plainly argumentative. The fact alleged against the commissioners is simply that they caused to be piled upon either side of the roadway the stones at which the plaintiff’s horse took fright. There is no legal significance in the averment that they “thereby rendered said highway out of repair.” The act alleged is therefore not within the plain, natural meaning of the words which the legisature has employed to indicate the enlargement of the commissioners’ liability which it intended.

The rule by which courts must ascertain the scope of statutes in derogation of the common law excludes all conjecture respecting the legislative intent. Even if it were not so we could not conjecture that the makers of the statute would have included the present case within the liability created if the case had been in their minds.' It may be assumed that the commissioners had collected these stones for the repair of the bridge and roadway in the proper discharge of the duty which the statute laid upon them. It is sufficient that no averment of the petition excludes that assumption. It would not be respectful to the legislature to assume that it intended that while the commissioners are engaged in the discharge of that duty the taxpayers of the county should be insurers of the lives and limbs of those *481who forget or ignore the long and well-known fact that *“a*horse is a vain thing for safety.” All the averments of the petition should be considered together, and the allegation 'that the horse which the plaintiff drove was gentle will not mislead if regarded in the light of what is alleged to have occurred.

*Judgment affirmed.*

Price, Crew, Summers, Spear and Davis, JJ., concur.