City Of Akron v. Butler

• Decision Date: 12 June 1923
• Docket Number: 17702
• Citation: 140 N.E. 324,108 Ohio St. 122
• Parties: The City Of Akron v. Butler.
• Court: Ohio Supreme Court

140 N.E. 324

108 Ohio St. 122

The City Of Akron v. Butler.

No. 17702

Supreme Court of Ohio

June 12, 1923

Municipal corporations-Negligence-Governmental or proprietary functions-Liability-Directed verdict-Street-cleaning a governmental function.

Where the plaintiff in an action against a municipalIty to recover damages for personal injuries caused by the negligence of a servant of the municipality fails to offer any evidence tending to prove that the servant at the time was engaged In the performance of a proprietary function of the municipality, as distinguished from a governmental function delegated by the sovereign state, a motion to direct a verdict at the close of the plaintiff's case should be sustained.

The defendant in error, T. Melvin Butler, brought suit against the city of Akron for damages for personal injuries sustained by him when struck by a motor truck belonging to the city and operated by an employee thereof.The truck was under the supervision of the superintendent of street cleaning and parks and public property, and was assigned to the department of street-cleaning, and at the time of the accident was returning from a trip to the Pennsylvania Depot where it had conveyed a broom shell for the purpose of shipment as a sample.

At the conclusion of the evidence of the plaintiff below, and again at the conclusion of all the evidence, motions were made for a directed verdict in favor of the defendant, on the ground that the service which the servants of the defendant were performing related to street cleaning, and was there for a governmental function, which motions were overruled, the case submitted to the jury, and a verdict returned in favor of the plaintiff.Motion for a new trial was overruled, and judgment entered on the verdict, which judgment was affirmed by the Court of Appeals.

Mr. ff M. Hagelbarger, director of law, and Mr. C. T, Moore assistant director of law, for plaintiff in error.

Mr Frank N. Stweitzer and Messrs, Musser, Kimber & Huffman, for defendant in error.

ROBINSON J.

The plaintiff in error, the city of Akron, seeks a reversal of the judgment of the court below upon the ground that at the time of the injury the servants of the city were engaged in a governmental function, in that they were returning from delivering a broom shell, which is a part of a street-sweeping machine, to the depot for shipment, and therefore were engaged in an act incident to street cleaning and that street cleaning is a service rendered in part for the preservation...