Hamilton v. Dilley

• Decision Date: 13 March 1929
• Docket Number: 21385
• Citation: Hamilton v. Dilley, 120 Ohio St. 127, 165 N. E. 713 (Ohio 1929)
• Parties: City Of Hamilton v. Dilley.
• Court: Ohio Supreme Court

165 N.E. 713

120 Ohio St. 127

City Of Hamilton v. Dilley.

No. 21385

Supreme Court of Ohio

March 13, 1929

Municipal corporations - Duty to keep streets free from nuisance - Section 3714, General Code - Exception to exemption from liability in discharging governmental function - Court to define nuisance, and jury to determine, whether circumstances within definition.

1.

The duty imposed upon municipalities in Ohio by Section 3714 General Code, to keep its streets free from nuisance, is an exception to the rule of common law that no liability attaches to a municipality for negligence in the discharge of a governmental function.

2.It is the province of the court to define a nuisance and the province of the jury to determine whether the circumstances of the particular case come within the definition of a nuisance.

The facts are stated in the opinion.

Messrs Shotts & Millikin, for plaintiff in error.

Messrs Andrews, Andrews & Rogers, and Mr. John Egan, for defendant in error.

MARSHALL C.J.

Anna L Dilley filed her petition in the court of common pleas of Butler county to recover for personal injuries received by her while riding in an automobile on the streets of the city of Hamilton in the nighttime, said automobile colliding with a raised platform about six inches above the street level, designed as a platform to aid passengers in boarding street cars and for the greater safety of passengers in safety zones. The platform had been erected on the location of one of the regu- lar safety zones at the street intersection of High and Third streets in said city, but had not been fully completed. When completed a concrete pillar or post approximately five feet in height, erected at one end of the platform, would have been lighted with a red light as a warning sign to indicate the presence and location of the platform. On the night of the collision there was no light or warning to indicate the presence or location of the platform, and by reason of the similarity in color between the pillar, the platform, and the street surface, the driver of the auto did not observe it until too late to avoid it. The plaintiff was seriously injured. In the trial court she recovered a judgment, which was affirmed by the Court of Appeals, and the cause was admitted to this court by allowance of motion to certify the record.

The basis of the action and the recovery was Section 3714, General Code, which requires municipal corporations to cause the streets to be kept open, in repair, and free from nuisance. The city has defended on the ground that the maintenance of streets and keeping them in repair constitutes a governmental function, and that there can therefore be no liability on the part of the city for any act of the city or its agents while engaged in improving or repairing the same. It is further urged that the erection of safety zone platforms is in the interest of the public welfare, that the city has a legal right to erect them, and that it is the duty of drivers of vehicles to avoid them. Counsel have cited the former decisions of this court in which it has been ruled that a municipality cannot be held responsible for the negligence of its agents and servants while engaged in the per- formance of a governmental function. With that principle, and with the authorities cited in support of it, this court is still in accord.

Among the cases cited and quoted is that of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. , 210, 52 A.L.R. 518. In that case, by the unanimous judgment of this court, it was declared that the agents and servants of the city, while engaged in making repairs and improvements to streets, are performing a governmental function. It was particularly stated in that case,, however, that the court was not declaring that any negligence of the city or its agents and servants while engaged in performing that function, resulting in leaving an obstruction amounting to a nuisance on the traveled portions of the highways of a city, might not be the basis of a recovery. In the former decisions of this court absolving municipalities of liability for negligence in the performance of governmental functions, it has not been doubted that such responsibility can be placed upon the municipality by legislative action. More than 75 years ago (Section 63 of an Act to provide for the...