On Rehearing.

This cause was reargued before the court En Banc on December 8, 1922. Deeming ourselves fully advised in the premises, and a majority of the judges being of the opinion that the cause was correctly disposed of by the decision of Department Two, reported in 119 Wash. 14, 204 Pac. 1064, the judgment is affirmed for the reasons therein stated and as therein directed.

I am unable to concur in the affirmance of this judgment. Under the law, it was the duty of the county to “maintain” this road. Before the accident, the road at the place of the injury appeared to be in excellent condition. It was in substantially the same condition it was when it was built. It did not need any repair. If it was defective it was so because of the nature of its original construction by the state, and for which defect the county was not in any manner responsible. The respondent was injured simply because of an inherent defect, and not because the road was in need of any repair. The duty to maintain does not impose a duty to rebuild the road because of some structural defect.