Robert Neff & Sons, Inc. v. City of Lancaster

• Decision Date: 14 January 1970
• Docket Number: No. 69-62,69-62
• Citation: 50 O.O.2d 80,21 Ohio St.2d 31,254 N.E.2d 693
• Parties: , 50 O.O.2d 80 ROBERT NEFF AND SONS, INC., et al., Appellants, v. CITY OF LANCASTER, Appellee.
• Court: Ohio Supreme Court

Page 31

21 Ohio St.2d 31

254 N.E.2d 693, 50 O.O.2d 80

ROBERT NEFF AND SONS, INC., et al., Appellants, v. CITY OF LANCASTER, Appellee.

No. 69-62.

Supreme Court of Ohio.

Jan. 14, 1970.

Syllabus by the Court

The duty of a municipal corporation under Section 723.01, Revised Code, to keep its streets open, in repair and free from nuisance, extends to structures or conditions located not only upon but above the surface of such streets, where such structures or conditions interfere with, or make dangerous, travel thereon. (Paragraph one of the syllabus of Yackee v. Napoleon, 135 Ohio St. 344, approved and followed.)

This action was commenced in the Court of Common Pleas of Fairfield County by plaintiff Robert Neff and Sons, Inc., as owner, and plaintiff Indiana Insurance Company, as insurer, of a highway livestock trailer, to recover from defendant, city of Lancaster, for damages to that trailer resulting from a collision with an overhanging limb on East Main Street in Lancaster, Ohio, on June 15, 1966.

The material allegations of plaintiffs' petition are that:

(1) The defendant is a municipality organized under the laws of the state of Ohio.

(2) East Main Street is a dedicated public thoroughfare extending in a generally easterly and westerly direction through defendant municipality.

(3) On June 16, 1966, and for a period of more than one year prior, defendant municipality permitted a tree limb to extend over and across East Main Street in such a way that it might damage vehicles and trailers lawfully using East Main Street.

(4) Defendant had notice, either actual or constructive, of the dangerous condition created by the overhanging limb.

(5) On June 16, 1966, plaintiff's highway livestock trailer was struck by the overhanging limb while traveling in a westerly direction on East Main Street and damaged.

(6) Plaintiffs suffered losses proximately caused by defendant's negligence amounting to $1,816.85 due to the decrease in reasonable market value of the highway livestock trailer and the loss of its use for 22 days.

The defendant filed an answer, denying all the material allegations of plaintiffs' petition other than the facts that 'it (defendant) is a municipal corporation arganized under the laws of the state of Ohio and that East Main Street is a duly dedicated public thoroughfare in the city of Lancaster, Ohio, extending in a general easterly-westerly direction through said city.'

The defendant then made a motion for judgment on the pleadings. The Court of Common Pleas sustained the motion and rendered judgment in favor of the defendant.

The Court of Appeals affirmed, one judge dissenting.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Dagger, Lantz & Johnston and Rodger W. McNaughton, Lancaster, for appellants.

John T. Huddle, Law Director, Lancaster, for appellee.

MATTHIAS, Justice.

The specific question of law presented by this case is whether plaintiffs have pleaded facts sufficient to state a cause of action under the applicable laws of Ohio.

Plaintiffs base their claim upon the provisions of Section 723.01, Revised Code:

'Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance.' (Emphasis added.)

Defendant relies upon Section 5577.05, Revised Code, which provides, in part:

'No vehicle shall be operated upon the public highways, streets, bridges, and culverts within the state, whose dimensions exceed those specified in this section.

'* * *

'(C) No such vehicle shall have a height in excess of thirteen feet six inches, with or without load.

'* * *

'This section does not require the state, a municipal corporation, county, township, or any railroad or other private corporation to provide sufficient vertical clearance to permit the operation of such vehicle, or to make any changes in or about existing structures now crossing streets, roads, and other public thoroughfares in this state.' (Emphasis added.)

It is established law in this state that the provisions of Section 723.01, Revised Code, insofar as they pertain to highways, extend only to those conditions affecting the actual physical conditions existing in or on the highway itself. Gabris v. Blake (1967), 9 Ohio St.2d 71, 223 N.E.2d 597 (paragraph three of the syllabus). Defendant would have us construe the statute so that it would not encompass conditions above the surface of the roadway such as, in this case, an overhanging limb. This we decline to do. See Fankhauser v. City of Mansfield (1869), 19 Ohio St.2d 102, 249 N.E.2d 789. By the use of the words 'on highways' in the Gabris case we meant conditions above as well as on the surface of the highway.

Section 723.01, Revised Code, imposes a general duty of care of the streets upon municipalities in Ohio. There is authority from other jurisdictions that such a statute may create a cause of action in favor of a plaintiff against a municipality for harm caused by an overhanging limb where the city has notice, actual or constructive, of the dangerous condition and permits it to continue. Tate v. City of Greenville (1956), 228 S.Ct. 590, 91 S.E.2d 161, 54 A.L.R.2d 1190; Lapchenko v. State (1956), 2 Misc.2d 478, 153 N.Y.S.2d 364; Fox v. Village of Nassau (1943), 266 App.Div. 1058, 44 N.Y.S.2d 906; Embler v. Town of Walkill (1890), 57 Hun 384, 10 N.Y.S. 797, affirmed, 132 N.Y. 222, 30 N.E. 404; Galloway v. City of Winchester (1945), 299 Ky. 87, 184 S.W.2d 890; City of Louisville v. Michels (1903), 114 Ky. 551, 71 S.W. 511; Valvoline Oil Co. v. Inhabitants of Winthrop (1920), 235 Mass. 515, 126 N.E. 895; Meridian City Lines v. Baker (1949), 206 Miss. 58, 39 So.2d 541, 8 A.L.R.2d 854. Cf. Inabinett v. State Highway Dept. (1941), 196 S.C. 117, 12 S.E.2d 848. See, generally, annotations, 19 A.L.R. 1021, 49 A.L.R. 840, 54 A.L.R.2d 1195.

In Yackee v. Village of Napoleon (1939), 135 Ohio St. 344, 21 N.E.2d 111, this court allowed recovery against a municipality by the plaintiff administratrix in a wrongful death action. The decedent, sitting on top of a truck when it was driven under a low railroad overpass, was killed as the result of a blow to the right side of his head.

At page 349, 21 N.E.2d at page 114, in the opinion in the Yackee case, Judge Hart stated:

'A municipal corporation holds the fee in its streets in trust for the purpose of public travel and transportation, subject to the right of the state to direct the method and manner by which such trust shall be administered, and is charged at all times by reason of Section 3714, General Code (Section 723.01, Revised Code), with the inescapable duty to keep such streets open, in repair and free from nuisance. This duty and requirement extends to the space above as well as to the surfact of the street. * * *' (Emphasis added.)

This rule was adopted in paragraph one of the syllabus of the Yackee case, which provides:

'The duty of a municipal corporation under Section 3714, General Code, to keep its streets open, in repair and free from nuisance, extends to structures or conditions located not only upon but above the surface of such streets where such structures or conditions interfere with, or make dangerous, travel thereon.'

We believe that the rule of the Yackee case is appropriate to the instant case. We can find no basis in reason for distinguishing a nuisance to traffic, created by a low overhanging limb of a tree, from a nuisance to traffic arising from the erection of an overhead structure which is so low as to constitute a dangerous condition to persons and vehicles lawfully using the roadway.

Further discussion is warranted, however, in view of the defendant's reliance upon the provisions of Section 5577.05, Revised Code.

It appears that the railroad viaduct involved in the Yackee case was sufficient for all lawful traffic at the time it was originally built in 1895. However, as vehicles of greater height came into use, that degree of vertical clearance became insufficient. This court, in the Yackee case, took cognizance of the fact that the clearance under the viaduct was only ten feet, whereas Section 7248-2, General Code (present Section 5577.05, Revised Code), allowed vehicles up to 12 feet 6 inches in height to travel the highways lawfully. Clearly, the structure did not provide adequate clearance for all lawful vehicles at the time of that case.

Subsequent to this court's decision in the Yackee case, the General Assembly modified Section 7248-2, General Code (now Section 5577.05, Revised Code). By amendment in 1949 (123 Ohio Laws 557), the height limitation was increased to 13 feet 6 inches, and the following provision was added to the last paragraph:

'Provided further, that nothing herein contained shall be construed to require the state, a municipality, county, township, or any railroad or other private corporation to provide sufficient vertical clearance to permit the operation of such vehicle, or make any changes in or about existing structures now crossing streets, roads and other public thoroughfares in the state of Ohio.'

In interpreting this section in the case of Brelo v. New York Central Rd. Co. (1960), 112 Ohio App. 145, 168...