City Of Cleveland v. Pine

• Decision Date: 29 April 1931
• Docket Number: 22623
• Citation: City Of Cleveland v. Pine, 123 Ohio St. 578, 176 N.E. 229 (Ohio 1931)
• Parties: City Of Cleveland v. Pine.
• Court: Ohio Supreme Court

176 N.E. 229

123 Ohio St. 578

City Of Cleveland v. Pine.

No. 22623

Supreme Court of Ohio

April 29, 1931

Municipal corporations - Streets and sidewalks - Duty to keep open, in repair and free from nuisance - Section 3714, General Code - Proof of negligence or notice necessary to recovery - Res ipsa loquitur inapplicable - Pedestrian injured falling into park sidewalk manhole.

In order to recover against a municipality under Section 3714 General Code, for damages due to falling into a manhole in one of the sidewalks of the public grounds, to wit, a park under the control and management of the municipality, there must be proof of negligence and notice, constructive or actual, the doctrine of res ipsa loquitur not applying in such case.

This is a proceeding in error, coming to this court from the Court of Appeals of Cuyahoga county. The original action in the court of common pleas was one brought by Howard Pine against the city of Cleveland for damages for the loss of services of his wife, who was injured when she stepped upon a manhole in the sidewalk in one of the public parks of the city. Upon the trial, the court of common pleas directed a verdict in favor of the city, and error was prosecuted to the Court of Appeals, which reversed the judgment of the common pleas court and remanded the case for trial. Error is now prosecuted to this court to reverse such judgment.

Mr Harold H. Burton, director of law, Mr. Walter Booth and Mr Raymond F. Dacek, for plaintiff in error.

Mr. Samuel M. Parks and Messrs. Vickery, Duffey & Vickery, for defendant in error.

DAY, J.

Plaintiff below and his wife were walking in Garfield Park in the city of Cleveland, on Sunday afternoon, August 10, 1924. Mrs. Pine stepped upon a manhole cover in one of the walks of the park which gave way and caused her to fall, from which she suffered injuries that necessitated medical treatment and rendered her unable to perform her usual household duties for a period of time, from which inability her husband, Howard Pine, sustained the damages complained of, to wit, medical expenses, loss of service, etc.

It was seriously urged in oral argument by counsel for the defendant in error that there is a liability on the part of the city, and therefore a right on the part of the injured party to recover under the common-law liability of the city, independently of the duty imposed by Section 3714, General Code. That section provides, in part:

"The council shall have the care, supervision and control of public highways, streets, avenues, alleys; sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."

It was held by this court in City of Cleveland v. Ferrando, a Minor, 114 Ohio St. 207, 150 N.E. , 747: "Municipally owned and controlled parks, established and maintained for, and open to the general public, are `public grounds' within the meaning of that phrase in Section 3714, General Code, and by that section the duty is imposed upon municipalities to keep them free from nuisance."

It is the spirit of that decision that municipally owned parks which are free to the public for purposes of recreation, are "public grounds," and it is likewise the spirit of Section 3714, General Code, that municipally owned parks are in the same classification as streets and alleys, and that therefore they are instrumentalities of government. It follows that the liability of the municipality for negligence in their maintenance, and the obligation to keep them free from nuisance, must rest upon the same basis as the liability relating to the maintenance and care of streets, alleys, sidewalks, and other ways. In- deed, the facts of the case at bar bring it clearly within the liability imposed on account of defective sidewalks, because it appears by the admissions of the parties that this particular manhole was...