The petition alleges that Cyrus Gaskins was killed when an automobile he was driving struck a rut or washout along the side of the road, in that county. The Commissioners filed an answer, a general denial, and setting up contributory negligence. The plaintiq then filed an amended petition, adding Milford village as a defendant, the part of the road where the accident occurred being in that village. Upon trial the court instructed verdicts for both defendants.

The defense claims that there is no duty enjoined in the law upon the County Commissioners to keep a street or public highway within a municipality in repair, this duty being specifically enjoined upon the council by 3714 GC. This was sustained by the Hamilton Appeals. The mption to certify was overruled by the Supreme Court.