Lohmann v. City of Cincinnati

• Decision Date: 05 December 1960
• Citation: 113 Ohio App. 353,173 N.E.2d 690
• Parties: , 15 O.O.2d 357 Pauline G. LOHMANN, Plaintiff-Appellant, v. CITY OF CINCINNATI, Defendant-Appellee. Carl J. LOHMANN, Plaintiff-Appellant, v. CITY OF CINCINNATI, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 353

113 Ohio App. 353

173 N.E.2d 690, 15 O.O.2d 357

Pauline G. LOHMANN, Plaintiff-Appellant, v. CITY OF CINCINNATI, Defendant-Appellee.

Carl J. LOHMANN, Plaintiff-Appellant, v. CITY OF CINCINNATI, Defendant-Appellee.

Court of Appeals of Ohio, First District, Hamilton County.

Dec. 5, 1960.

C. R. Beirne and Eugene Droder, Cincinnati, for appellants.

James W. Farrell, Jr., City Solicitor, Edward A. Hogan and Lyle W. Castle, Asst. City Solicitors, Cincinnati, for appellee.

O'CONNELL, Judge.

These cases grew out of an accident that happened on December 29, 1956 on Erie Avenue, where Erie Avenue becomes a bridge as it crosses Red Bank Road, both of these streets having been duly dedicated.

The facts in the case are that the plaintiff, Pauline G. Lohmann, was driving in a westerly direction on Erie Avenue, on December 29, 1956, and as her automobile entered on the bridge, above referred to, the automobile skidded and hit an iron utility pole. As a consequence the plaintiff, Pauline G. Lohmann, sustained serious injuries. In her petition, she asked for damages on account of these injuries, and for her loss of employment. In Carl J. Lohmann's petition, he asked for damages for expenses incurred as a result of his wife's injuries and for loss of his wife's services.

To these petitions, the defendant demurred on the grounds that the City is not liable for a nuisance in the highway, unless that nuisance is intimately connected with a defect in the highway construction, and unless reasonable notice has been given to the City that such nuisance has existed. Thus, the giving of reasonable notice to the City is treated in Bello v. City of Cleveland, 106 Ohio St. 94, 138 N.E. 526. The first paragraph of the syllabus to that case is as follows: 'The liability of a municipality under section 3714, General Code, can only be established by proof of notice or knowledge of a dangerous condition in a street, or other public place as therein enumerated, or of its existence for such length of time as to impute notice or knowledge, or by proof that the agents and officers of the municipality actively caused such condition.'

Now the only notice given to the City according to the amended petition was as follows: 'During the afternoon of December 28, 1956, the Highway Maintenance Department of the defendant was given three written notices by the meteorologist in charge of the United States Weather Bureau, Cincinnati, Ohio, warning the defendant of the fact that the snow would melt on the highways in Cincinnati with no accumulation expected or icy conditions developing except on the bridges and viaducts in said City and that such places would probably ice up when the temperature was expected to drop during the evening.'

However, there is no assertion here that a responsible official received any notice; moreover, whatever notices were given in this case referred to the future; and in order for the notice to the City to be effective, it must have reference to the present.

For the City to be held liable, there must be a defect in construction or otherwise. Thus it is held in the case of Standard Fire Insurance Co. v. City of Fremont, 164 Ohio St....