City of Cincinnati v. Fleischer

• Decision Date: 16 October 1900
• Citation: 58 N.E. 568,63 Ohio St. 229
• Parties: CITY OF CINCINNATI v. FLEISCHER.
• Court: Ohio Supreme Court

58 N.E. 568

63 Ohio St. 229

CITY OF CINCINNATI v. FLEISCHER.

Supreme Court of Ohio.

October 16, 1900

Error to superior court of Cincinnati.

Action by George H. Bennett against the city of Cincinnati. Judgment for plaintiff, and defendant brings error. One Fleischer, on the death of plaintiff, was substituted. Reversed.

In his lifetime George H. Bennett, the intestate of Fleischer recovered a judgment against the city of Cincinnati on account of a personal injury which resulted to him from stumbling over a stepping stone or carriage block, located on a sidewalk of Race street, near the curb. The allegations of negligence in his petition are as follows: ‘Plaintiff says that the defendant is a city of the first grade of the first class, and is a municipal corporation, duly organized and existing under the laws of the state of Ohio. That heretofore, to wit, on the 19th day of January, 1898, the defendant wrongfully, willfully, knowingly, and negligently caused, suffered, and permitted a large stone block, about fourteen inches wide, and about nine inches high, and two and one-half feet long, to be and to remain upon the sidewalk of Race street, on the west side of said street, between Fifth and Sixth streets, in the said city of Cincinnati, and opposite No. 529 Race street, about two feet from the curb of said sidewalk. That the said Race street was then and there for a long time prior thereto, and still is, a public street which is much traveled and used by the citizens of the said city of Cincinnati, and by the public generally. That there was no guard, railing, lights, or signs around the said block of stone, and that the said block of stone had been permitted by the defendant to remain upon the said sidewalk, as stated for a long space of time prior to the said 19th day of January, 1898, of all of which the defendant then and there had due and reasonable notice. That on said 19th day of January, 1898, about 6:20 p. m. of said date, when it was then and there dark, the plaintiff was then and there lawfully traveling on said street, walking south on the west side of the said Race street, and the plaintiff, without any default or negligence on his part, and not knowing that the said block of stone was then and there obstructing the said sidewalk, the plaintiff being then and there unable to see said block of stone by reason of the darkness and rain, and of the number of the people carrying umbrellas raised, who were then and there using said sidewalk, then and there struck his left foot against and said stone on the said sidewalk, and then and there fell, and was then and there severely bruised,’ etc. The city admitted its corporate character, and that Race street was at the time of the plaintiff's alleged injury, and for a long time prior thereto had been, a public street, and it denied all other allegations of the petition. On the trial of the issues the city offered no evidence. The plaintiff introduced evidence tending to show that the carriage block was of stone somewhat smaller than the usual size, and lying only far enough from the curb to permit the hubs and steps of carriages to pass. It was used for the convenience of persons getting into or alighting from carriages. It had occupied substantially the same position for more than 15 years. At the conclusion of the plaintiff's evidence counsel for the city requested the court to direct a verdict in...