Conrad v. Ridgeville Twp. Bd. Ed.

PARDEE, J. In title 2 of the Ohio state building code, being Secs. 12600-44 to 12600-72, both inclusive, provision is made for the construction and equipment of school buildings; and said Sec. 12600-72 reads as follows: “For the necessary devices for guarding . machinery and pits, see sections 1027 and 1028 Ohio General Code.” By Sec. 1027, G. C., the owners and operators of shops and. factories are required to make suitable provisions to prevent injury to persons who use or come in contact with machinery or part thereof in said shops and factories, and are specifically required to guard all saws, wood-cutting, wood-shaping and all other dangerous machinery therein; and Sec. 1028 reads in part as follows: “Whoever, being a person, firm or corporation, fails to comply with any provision of the preceding section, or fails to comply with such orders for changes as are issued by the chief inspector, within thirty days thereafter shall be fined not less than one hundred dollars for each offense. . . . It is admitted, of course, by the demurrer that the plaintiff suffered the injuries at the time and place alleged by him, and that the saw was unguarded as required by the foregoing quoted sections. The plaintiff claims that by these sections a civil liability is cast upon all employers and school boards, who fail to do the things required as set forth therein. It being conceded that the defendant school board would not be liable in damages for the injuries complained of unless a liability is created by statute, do said Secs. 1027 and 1028 create a civil liability? The Supreme Court, in the case of County Commissioners v. Darst, 96 O. S. 163, held that Sec. 7563, G. C., imposes an absolute duty upon the board of county commissioners to erect guard rails on each side of every embankment or approach to county bridges at such points where the embankment or approach is more than a certain heighth, and that for failure to comply with the requirements of said section, the county was liable for damages — not under that section, but under a subsequent section: to wit, 7565, which expressly provides, that the county shall be"' liable for all accidents or damages where the county commissioners fail to comply with said Sec. 7563; and it was said by Judge Jones in his opinion in said case, at p. 167: “In the interpretation of a. statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition.”’ In the instant case, there can be no question but that the board of education was required* by the sections hereinbefore quoted, to guard, the saw which injured the plaintiff, and its failure to do so made the members thereof guilty of a misdemeanor, for which they could be punished in an action at law; but these sections do not impose a civil liability upon said board for failure to do so — at most, it is not clear that the lawmaking body intended it to be so; so one who is injured by such failure cannot recover damages from the board. See also: Finch v. Bd. of Education, 30 O. S. 37. Bd. of Education v. Volk, 72 O. S. 469. We are therefore of the opinion that the ruling of the trial court was correct, and the judgment is affirmed. (Washburn, P. J., concurs. Funk, J., not participating.)