#### Riley *v.*McNicol et al., Board of County Commissioners.

*County commissioners*— Negligence—Duty *to erect guard rails —Section 1563, General Code*— “‘Culvert’’ *construed.*

*A*board of county commissioners constructed a highway 24 feet in width, with a 14-foot paved brick road in the center. At the bottom of the embankment it inserted a 12-inch corrugated pipe, 44 feet in length; this pipe was 13 feet below the surface level of the traveled highway and the ends thereof 10 feet distant therefrom. *Held,*such pipe was not a “culvert” within the meaning of Section 7563, General Code, and the board is not liable for failure to erect and maintain guard rails at a point on the highway above such pipe, or on the side of an approach thereto.

(No. 17848

Decided December 4, 1923.)

Error to the Court of Appeals of Columbiana county.

The plaintiff in error, Pearl K. Riley (later Mrs. Pearl K. Sauerwein), sought to recover damages against the boa.rd of county commissioners for injuries sustained by her while riding over an improved highway between Salem and Lisbon, Ohio. In the court of common pleas she obtained a judgment in her favor, which was reversed by the Court of Appeals; whereupon proceedings in error were instituted in this court.

The injuries were sustained on the evening of December 6, 1919, while she, together with three others, was riding in a Ford roadster. One Lennig, who was driving, the car over a descending grade, in passing a horse-drawn vehicle, turned *30his car so that it traveled partly on the paved road and partly on the dirt road adjoining. It had been raining, and the improved road was in an icy condition. Lennig in attempting to regain the brick road turned his car in such manner as to cause it to skid over the brick road and berme bank adjoining. The car left the highway either at a point designated as a culvert or within a few feet therefrom.

The second amended petition, as a ground of liability against the board, rested upon allegation and proof that the board of county commissioners had failed to protect the culvert and approaches thereto by suitable guard rails or otherwise; that the culvert was more than 5 feet high at the point where the ear went over the declivity; and that the approaches to the culvert at the same point were more than 6 feet in height.

As disclosed by its journal entry, the Court of Appeals reversed the judgment of the trial court, for the reason that the culvert, where the accident occurred, was not such a structure as was contemplated by the Legislature in enacting the sections of the statute relating thereto, and that it was not such a culvert as was required by law to be safeguarded by guard rails.

The character of the alleged culvert in question must be described with some precision in order to ascertain whether this particular structure was within the meaning of that term as found in the statute. When the county commissioners improved the highway in 1917, the surface of the highway used for travel, at the point where the alleged culvert was inserted thereunder, was 24 *31feet in width between the edges of the embankment. The center of the highway was occupied by a paved brick road 14 feet in width. On each side of the brick road was a driveway or berme bank 5 feet in width, extending from the brick pavement to the edge of the embankment, which was not a perpendicular washbank. At the time of construction a corrugated iron pipe, 12 inches in diameter, had been inserted about 13 feet below the level or surface of the highway, in order to drain the water from one side of the highway to the other. The iron pipe or drain was 44 feet in length and the ends of the drain on either side of the highway were approximately 15 feet distant from either side of the brick pavement, or about 10 or 11 feet distant from the outer edge of the 5 foot berme bank or driveway adjoining the pavement. Later, in 1919, the end of the drain at the point where the accident occurred was covered by earth and a riprap was built over the end of the drain in order to keep the earth from sliding thereover. This riprap was built upon a concrete head wall 4 feet in diameter, which had originally been constructed to protect the end of the drain. It was at this point, or within a few feet therefrom, . that the Ford roadster went over the embankment.

If the culvert thus described and the approaches thereto come within the purview of the statute requiring them to be guarded by guard rails, it follows that the board of county commissioners is liable in this action, since it is conceded that there were no guard rails at any point along this highway over or near the alleged culvert, and that the *32approaches or embankment in that vicinity are more than'6 feet high. The pipe underneath the highway was laid substantially at water level for the drainage of water, but, as previously stated, was about 13 feet below the surface level of the highway.

*Messrs. Craver, Diser, Huey & Starrs,*for plaintiff in error.

*Mr. Jesse C. Hanley*and *Mr. R. M. Brooks,*for defendants in error.

Jones, J.

The controlling facts relating to the construction of the highway at the point of injury are not in dispute. The Court of Appeals reversed the judgment of the trial court because the evidence did not indicate such a structure, or present such a condition, as was contemplated by the Legislature in enacting the guard rail statutes, and because the structure was not such as is required to be safeguarded by guard rails.

The traveled highway at the point of injury was 24 feet wide. In the center was a brick pavement 14 feet in width. Thirteen feet below the surface of the highway, at the time of construction, there had been inserted a 12-inch pipe, 44 feet in length. This pipe was substantially at the bottom of the embankment, and served the purpose of carrying the water underneath from one side of the road to the other. The end of the conduit on each side of the highway was about 15 feet from the brick paved road and 10 feet from the berme bank, or dirt highway, on either side of the brick pavement.

The question arises whether this was a culvert *33within the meaning of the statute, and whether guard rails were required to be placed either over the points occupied by the conduit or upon the contiguous approaches of the highway thereto. Section 7563, General Code, requires the county commissioners to erect or cause to be erected “one or more guard rails on each end of a * * * culvert more than five feet high,” and “one or more guard rails on each side of every approach to a * * * culvert if the approach or embankment is more than six feet high.”

This court has on various occasions announced the principle that these county boards are not liable in their official capacity for negligent discharge of official duties, unless such liability is created by statute, and that “such liability shall not be extended beyond the clear import of the terms of the statutes.” *Weiher*v. *Phillips,*103 Ohio St., 249, 133 N, E., 67. In *Board of County Comm’rs of Franklin County*v. *Darst,*96 Ohio St., 163, it is stated in the opinion, at page 167, 117 N. E., 166, at page 167, that the statutory terms, if doubtful or ambiguous, should be resolved against the imposition of liability upon the board for official delinquencies.

It may be conceded that the 44-foot conduit, laid 13 feet under the traveled highway, answered the description of a “culvert,” as given by lexicographers; but does it answer the description of a “culvert” within the purpose and intendment of the quoted section? By its express terms the statute requires one or more guard rails to be erected *on each end*of a culvert more than 5 feet high. If the exact language of the statute be followed, this would require guard rails, in this par*34ticular instance, to be placed at the foot of the embankment on each side in order to connect with each end of the culvert. Manifestly this would be useless, for it would give no protection to the traveling public if erected at such points. Furthermore, if this be not deemed a statutory culvert, within the purview of the quoted section, it naturally follows that the approaches thereto are likewise not comprehended within the statute. Had this conduit or culvert not been inserted at the bottom of the embankment, the accident would have occurred in any event. There are many places along the public highways sustaining the same character of construction as shown in the instant case. We are constrained to the view that simply placing the alleged culvert 13 feet under the embankment was not intended by the Legislature as imposing liability upon the board where none would exist had there been no conduit inserted.

Invoking the principle that a statute importing an intention to impose liability upon the board, if doubtful or ambiguous, should be resolved against it® imposition, we are of the opinion that this 12-inch pipe, inserted at the bottom of the embankment, and 13 feet under the level of the highway, the ends extending 10 feet beyond the traveled surface of the highway, is not a “culvert” within the meaning of Section 7563, General Code, which requires the erection of guard rails; nor are guard rails required to be erected on the approaches thereto. The fact that the statute associates comity bridges, viaducts, and culverts in the same clause implies that the construction of each should *35extend substantially to tbe level of the traveled highway, thus becoming a source of danger at that point. If the Legislature intended to safeguard the public highways and embankments of the kind under consideration, it would have protected the declivities on each side thereof, whether a conduit had been inserted or not.

Entertaining these views, we are of the opinion that the judgment of the Court of Appeals, reversing the judgment of the trial court, was not erroneous,. With the facts conceded, we are unable to see why the Court of Appeals did not render judgment in favor of the board, instead of remanding, since a retrial of the case would be useless.

In the trial court one of the defenses of the board was that at the time of the accident that part of the highway was an intercounty highway, and under the control of the state highway department. In the Court of Appeals and in this court counsel for the board complain that that feature of the cause was not submitted to the jury under the evidence offered. However, it is unnecessary to dispose of that feature, in view of our decision upon the other branch of the case.

Proceeding to render the judgment which the Court of Appeals should have rendered, this court affirms the judgment of reversal, and renders judgment in favor of the defendants in error upon the undisputed and controlling facts.

*Judgment affirmed.*

Marshall, C. J., Matthias and Day, JJ., concur.