Griffin v. City of Cincinnati

• Decision Date: 24 November 1954
• Docket Number: No. 33799,33799
• Citation: 55 O.O. 118,123 N.E.2d 11,162 Ohio St. 232
• Parties: , 55 O.O. 118 GRIFFIN, Appellee, v. CITY OF CINCINNATI, Appellant.
• Court: Ohio Supreme Court

Page 232

162 Ohio St. 232

123 N.E.2d 11, 55 O.O. 118

GRIFFIN, Appellee, v. CITY OF CINCINNATI, Appellant.

No. 33799.

Supreme Court of Ohio.

Nov. 24, 1954.

Syllabus by the Court.

1. Under Section 3714, General Code, Section 723.01, Revised Code, a municipality can not as a matter of law be held responsible as to every depression, difference in grade or unevenness in sidewalks within its limits.

2. Where an abrupt raise of a section over an adjoining section of a cracked and broken concrete sidewalk in the downtown section of a city is as high as two inches, and where there is a triangular hole in the corner of a section adjacent to such abrupt raise, it can not be held as a matter of law that such defects are so slight that danger to a pedestrian from their existence may not be reasonably anticipated.

3. Where an abrupt elevation or depression in a cracked and broken concrete sidewalk is as much as two inches, and where there is a triangular hole in a section of such sidewalk adjacent to such abrupt elevation or depression, it becomes a question of fact whether such defects constitute a qualified nuisance, and, where a city has constructive notice of such defects, it is proper to submit to a jury, under proper instructions, the question whether such condition under all the attendant circumstances constituted a qualified nuisance and was the direct and proximate cause of a claimed injury.

On March 3, 1949, about 7:00 p. m., the plaintiff, appellee herein, hereinafter referred to as the plaintiff, sustained injuries as a result of a fall while he was walking on a cement sidewalk on the north side of Eighth Street at its intersection with Sycamore Street in the city of Cincinnati, Ohio.

He claimed his shoe caught in a defect in the sidewalk, which was caused by the buckling and cracking of one slab of cement and the sinking of an adjoining one, making a difference in the elevations of the slabs of one or two inches. As a result of this, he fell to the sidewalk and sustained injuries.

The plaintiff instituted this action in the Common Pleas Court of Hamilton County for damages based on the alleged negligence of the city in failing to keep the sidewalk in repair and free from nuisance.

To the plaintiff's petition the city filed an answer in which it denies any negligence on its part, but pleads that, if it was negligent, then the plaintiff's injuries were caused by his own contributory negligence. The case was tried twice to a jury, and each time the jury returned a verdict for the plaintiff. The Court of Appeals reversed the judgment of the trial court in the first trial, 92 Ohio App. 492, 111 N.E.2d 31, for the giving of a special charge to the jury and for the refusal to give another.

The judgment of the trial court, following the second trial, was affirmed by the Court of Appeals, and the matter is now before this court upon the allowance of a motion to certify the record.

Henry M. Bruestle, City Solicitor, Maurice W. Jacobs, William A. McClain, Cincinnati, and Edgar W. Holtz, Cincinnati, for appellant.

Leo J. Brumleve, Jr., and Sidney C. Brant, Cincinnati, for appellee.

LAMNECK, Judge.

The city has listed six assignments of error in its brief filed in this court, but it stresses the following:

1. That no qualified nuisance was proved by the plaintiff.

2. That the plaintiff's own evidence raised an unrebutted inference of sole or contributory negligence.

3. That it was not proved that the city had actual or constructive notice of the alleged defective condition of the sidewalk.

4. That the trial court erred in giving and refusing to give certain special charges.

Section 3714, General Code, Section 723.01, Revised Code, provides in part:

'Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of * * * streets, avenues, alleys, sidewalks * * * within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.'

In construing Section 3714, General Code, this court has made a number of pronouncements which must be considered as fundamental.

1. A municipality is not, as a matter of law, an insurer of the safety of persons in the use of its streets and sidewalks. Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A.L.R. 44.

2. A municipality, as a matter of law, cannot be held responsible as to every depression, difference in grade or unevenness in its streets and sidewalks. Deckant v. City of Cleveland, 155 Ohio St. 498, 99 N.E.2d 609.

3. A variation of from one-half to three-fourths of an inch in the height of adjacent sections of a sidewalk is a slight defect and does not constitute a qualified nuisance. Kimball v. City of Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708, 710.

The court in Kimball v. City of Cincinnati, supra, quoted with approval the following statement contained in the opinion in Gastel v. City of New York, 194 N.Y. 15, 86 N.E. 833, 128 Am.St.Rep. 540:

'We think we may take judicial notice of the fact which ordinary observation discloses that there is scarcely a rod in the streets of any city in which there may not be discovered some little unevenness or irregularity in sidewalks, crosswalks, curbs, or pavements. As the result of various causes, climatic and otherwise, they are constantly occurring and recurring. Ordinarily they cause no difficulties, and it would require a vast expenditure of money to remove them all. The recent tendency of the law as evidenced by legislative enactment has been in the direction of making less rather than more stringent the rules of municipal liability in such cases, and, directing our considerations to the precise facts here presented, we think that we should be disregarding those principles of liability which are justified by reason and public policy if we should permit a recovery."

The Court of Appeals in the instant case came to the conclusion that this was a borderline case. This was no doubt due to the fact that it is almost impossible to lay down a common-sense rule applicable to all sidewalk cases, which will not impose upon municipalities impossible financial and administrative burdens and at the same time make sidewalks reasonably safe for public use.

The difficulty arises in fixing precise bounds between those abrupt raises and depressions from which negligence may be inferred and those which, as a matter of law, do not constitute negligence. Nearly all trial courts have had difficulty in determining whether a particular defect in a street or sidewalk does or does not constitute negligence. However, where the irregularity is slight, the court should, as a matter of law, hold that such unevenness is not evidence of negligence. We feel that, where a case presents only a situation of an abrupt raise of a few inches and there are no other defects, such raise should be considered as a slight defect which may ordinarily be expected.

An abrupt raise in a sidewalk does not of itself constitute negligence on the part of the municipality. All the attendant circumstances should be taken into consideration, and whether a sidewalk is reasonably safe or dangerous for travel does not depend alone upon the matter of elevation or depression. The locality, the amount of use and travel, the condition of the sidewalk as a whole, whether it is in a business or a residence neighborhood, and whether it is in a solidly or sparsely built up section are all circumstances which must be taken into consideration in addition to an elevation or depression. A cinder walk cannot be maintained as even as a brick or concrete one. A municipality is not required to maintain any particular type of sidewalk.

In Sears v. Town of Greenfield, 287 Mass. 445, 192 N.E. 1, it is stated:

'Manifestly an extent or character of a projection or depression in a highway [or sidewalk] which under one set of attendant circumstances would amount to an actionable defect by reason of the statute would not necessarily under other and different conditions constitute such a defect.'

If the difference in elevation of adjoining parts of a sidewalk is so great that no reasonable mind could say it is not dangerous, and a municipality had actual or constructive notice of such defect, the case should be submitted to the jury with instructions to determine whether the condition under all the attendant circumstances shown in evidence was the direct and proximate cause of a claimed injury. On the other hand if the difference in elevation or depression is slight and such as must be expected and endured, then the case should be taken from the jury.

There is evidence in this case tending to show that on the evening of March 3, 1949, the plaintiff, aged 37 years and in good health, was walking eastwardly on the north sidewalk of Eighth Street in the city of Cincinnati; that, while walking in an ordinary manner and as he approached the intersection of Eighth and Sycamore Streets, he attempted to turn northwardly into Sycamore Street; that, as he was making the turn, he stepped into a triangular hole in a section of the sidewalk adjacent to an abrupt raise caused by the buckling of cement blocks and as a result fell to the ground and was injured; that the sidewalk was cracked and broken; that 'the concrete slabs were raised [and] some lowered about anywhere from an inch and a half to two inches'; that the condition had existed from a year to a year and a half; that the plaintiff was a stranger to the neighborhood; that it was twilight and an electric light on a stanchion located near the curb on Sycamore Street and on a projected line of the north edge of the Eighth Street sidewalk was lighted and there were other lights in the neighborhood; and that the plaintiff did not see either the offset or the depression before he fell while in the act of turning to go north on Sycamore Street.

As defined in Taylor v....