City of Mingo Junction v. Sheline
| Decision Date | 19 June 1935 |
| Docket Number | 25204. |
| Parties | CITY OF MINGO JUNCTION v. SHELINE. |
| Court | Ohio Supreme Court |
Error to Court of Appeals, Jefferson County.
Action by one Sheline, administratrix, against the City of Mingo Junction. To review a judgment of the Court of Appeals, which reversed a judgment for the defendant, the defendant brings error.-[Editorial Statement.]
Judgment of the Court of Appeals reversed, and judgment of the Court of Common Pleas affirmed.
The decedent's administratrix brought this action against the city of Mingo Junction for injuries resulting in the death of the decedent caused by a coasting accident on one of the streets of the city. The decedent was a boy about fifteen years of age, the accident occurring on March 7, 1932. The case was tried before a court and a jury. At the close of the plaintiff's evidence, the court directed a verdict in favor of the defendant city. This was followed by a judgment in the city's favor. Error was instituted in the Court of Appeals. That court reversed the trial court for two reasons First, that it erred in directing the verdict; and second because of the ‘ exclusion of competent evidence.’ The case is here on an order of certification made by this court.
A brief résumé of the facts is necessary in order to determine whether the trial court erred in directing a verdict. At Murdock street, in the city of Mingo Junction two barriers were placed across the street, one at its junction with Sinclair street and the other at its junction with Union street. About four o'clock in the afternoon on the day of the accident, a garbage collector in the employ of the city was directed by the city's service director to place the barriers across Murdock street for the purpose of preventing traffic thereon and to provide a coasting place for the pleasure of its citizens. These barriers were erected between 4 and 4:30 p. m., and red warning lights were placed upon them. While constructing these barriers, this city employee, and an assistant who was not in the employ of the city, saw an automobile parked at the curb on Murdock street at a point somewhere between the barriers. This automobile was the property of one Dale Quillen, and was parked in front of his mother's house. None of the city officials had notice or knowledge of this parked automobile. The coasting place was covered with snow and ice. At about eight o'clock on the evening of the same day, after dark, the decedent, with other boys, assembled at the upper barrier and from that point began to coast. There were street lights in the vicinity, but the testimony tends to show that the automobile could not be discerned by the coasters, because of the glow made by a street lamp on the snow and ice, until after the boys had started their coasting. There was no testimony tending to prove that the parked automobile had its lamps lighted. The decedent's sled, while coasting struck the rear end of the automobile parked at the curb and decedent died from his injuries received from the collision. Hence the law suit.
During the course of the trial, plaintiff's counsel called the clerk of the city council for examination and sought to introduce in evidence what he claimed to be the minutes of the city council made January 1, 1930. He produced a book containing the minutes, marked it Exhibit A and, in offering it in evidence, said: ‘ I offer to place in evidence the record of the minutes of Council of Wednesday, January 1, 1930, or so much thereof as pertains to matters in this case, Plaintiff's Exhibit A.’ Objection to its admission was made by the defendant and was sustained by the court, plaintiff's counsel excepting to the ruling. Exhibit A was not attached to or made a part of the bill of exceptions, and is not a part of this record. This proceeding is referred to in order to determine whether the Court of Appeals erred in its ruling that the trial court erred in refusing to admit in evidence the minutes contained in Exhibit A.
Syllabus by the Court .
1. Where a city sets aside and barricades a street for the use and pleasure of its citizens for coasting purposes, it acts under the exercise of its police power, and in such respect is exercising not a proprietary, but a governmental function.
2. In so exercising its governmental function in the use and control of its streets, the city is not liable in tort therefor unless such exercise results in the creation or maintenance of a nuisance within the purview of section 3714, General Code.
3. A boy fifteen years of age, while coasting, ran into an automobile parked at the curb and was killed. Since the setting aside of the street by the city and the parking of the automobile were both lawful, there was no duty cast upon the city to disturb either. What the law sanctions cannot be held to be a public nuisance.
4. Where a combination of conditions exists which unitedly causes a dangerous situation to those using the street, and where it is not claimed or it is conceded that neither of the conditions constituted a nuisance within the meaning of section 3714, General Code, there can be no liability under that section.
5. Where an exhibit claimed to contain material evidence has been offered at the trial and its admission refused by the trial court, it is error for a reviewing court to base a reversal upon such refusal if the exhibit has not been incorporated in the bill of exceptions or otherwise made part of the record.
Hugo Alexander, Lawrence M. Sedgwick, David M. Spriggs, and Ralph B. Cohen, all of Steubenville, for plaintiff in error.
C. L. Williams, of Steubenville, for defendant in error.
In finding that the trial court erred in excluding Exhibit A, the appellate court in its opinion said:
‘ This court is inclined to think, although the proposed motion was not read into the record, that this testimony should have been received; * * *
‘ This court is of the opinion that if the interest of the plaintiff had been preserved and protected, especially by a proper offering of this testimony and preservation of exception thereto, that the plaintiff should have had the benefit of such testimony so offered.’
This exhibit was offered by the plaintiff for the purpose of showing that the city council, more than two years prior to the date of the accident, had adopted some action relating to the placing of barriers on the city streets. What those proceedings of the city were, whether passed by resolution or ordinance, whether they were permanent or temporary measures, and whether they imposed an authority upon the service director or other official, we do not know, for Exhibit A was not incorporated in the bill of exceptions. It is obvious, therefore, that its competency and materiality cannot be determined by this court; neither could they be determined by the Court of Appeals, which had before it the same record we have. It possibly may be that it had the council minute book before it in fact; but, if so, this gave the court no power to base its reversal on the failure of the trial court to admit the exhibit in evidence, for the exhibit is not contained in the bill of exceptions or vouched for by the signature of the trial judge. The appellate court, therefore, erred in finding, as one ground of reversal, that the trial court erred in the ‘ exclusion of competent evidence.’
We will assume that the exhibit was admitted, showing that appropriate legislative action had been taken by the city council setting aside this street for coasting purposes, and that the service director had been delegated to provide such coasting places. Under the facts pleaded in the petition and disclosed by the evidence, is the city liable? In performing such duties, was the city exercising a governmental or a proprietary function? In City of Akron v. Butler, 108 Ohio St. 122, 140 N.E. 324, we held that where the plaintiff, in his action against a city to recover damages for personal injuries caused by the negligence of a servant of a municipality, fails to offer evidence tending to prove that the servant was...
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