Dayton v. Harmon

12 Ohio Cir. Dec. 574

• Court: Ohio Circuit Courts
• Decided: June 15, 1897
• Status: Published

Opinion

Shearrr J.

The demurrer was properly sustained to the second defense at the second amended answer. It states mere conclusions, not facts.

The fourth defense, to which a demurrer was sustained, is based upon Sec. 4906, Rev. Stat., which requires county commissioners to keep in repair all parts of roads within municipal corporations to a point where the sidewalks have been curbed and guttered and no further; and it is alleged that the sidewalks upon Brown street had not been curbed and guttered to the point where the accident causing the injury complained of occurred. •

It seems clear, however, that the provisions of this section are not available to the plaintiff in error as a defense.

In the first place we do not think the bridge is a part of the street within the meaning of the statutes which apply herein. But, be that as it may, the general law as found in Sec. 2640, Rev. Stat., imposes upon the municipal corporation the care, supervision and control ot all public highways, streets and bridges within the corporation, and the duty of keeping them open, in repair and free from nuisance.

This general provision is qualified by Sec. 860, Rev. Stat., -which requires county commissioners to keep in repair bridges, except bridges wholly within the croporation where the municipality has the right to a demand and does receive a portion of the bridge tax levied therein; and by Sec. 4938, Rev. Stat., which charges the commissioners with the repair of bridges in cities not having the right to demand and receive part of the bridge fund levied and collected in the corporation.

The question then arises whether Dayton has the right to demand and receive a proportion of the bridge tax levied by the commissioners.

The answer is found in Sec. 2824, Rev. Stat., which authorizes all cities of the second class to demand one-half of the bridge tax levied in the city ; and declares that Dayton may levy its own bridge tax and expend the same m the corporation; and by Sec. 1707d-4, Rev. Stat., 89 O. h. 102, the board of city affairs of Dayton is clothed with the exclusive control of the streets and bridges of the city.

It follows necessarily that the city of Dayton and not the county of Montgomery is chargeable with the control and duty ol repair, etc., of the bridge in question; and said demurrer was properly sustained to the fourth defense of such amended answer.

The first instruction to the jury requested by the plaintiff in error was properly relused. It is not law.

All that was proper of the second request is found in the general charge.

The remaining assignments of error are not ipsisted upon and the judgment will be affirmed.