Roberts v. City of Fairborn

• Decision Date: 29 October 1956
• Citation: 141 N.E.2d 297,102 Ohio App. 91
• Parties: , 2 O.O.2d 93 ROBERTS, Appellee, v. CITY OF FAIRBORN, Appellant. *
• Court: Ohio Court of Appeals

Page 91

102 Ohio App. 91

141 N.E.2d 297, 2 O.O.2d 93

ROBERTS, Appellee, v. CITY OF FAIRBORN, Appellant. ^*

Court of Appeals of Ohio, Greene County.

Oct. 29, 1956.

Syllabus by the Court

1. The determination of whether a juror has been guilty of misconduct rests solely within the discretion of the trial court; and a reviewing court will not disturb such determination unless there is shown an abuse of discretion.

2. The duty imposed by Section 723.01, Revised Code, which provides, inter alia, that a municipal corporation 'shall cause * * * [streets] to be kept open, in repair, and free from nuisance,' is an exception to the common-law rule that no liability rests on a municipality for negligence in the discharge of a governmental function; and under such section a municipality is liable for negligence in creating a faulty condition in a street, or in failing to repair, remove or guard against defects or obstructions therein, after actual or constructive notice thereof, where the traveler in the exercise of ordinary care is subjected to the dangerous condition.

3. Where an open drainage ditch runs along the side of a street adjacent to the traveled portion thereof and is within 2 or 3 feet of the graveled area of such street and where there are no sidewalks or curbs, the question whether such condition is such as to require a city to erect a barrier or provide a guard for the protection of pedestrians on such street is one for the jury.

4. Where such street is unlighted and a pedestrian uses the traveled portion thereof, and attempts to avoid such unguarded open ditch but because of darkness deviates therefrom and falls into such ditch, the question whether such person was guilty of contributory negligence which would prevent recovery is for the jury.

5. In such case, an affirmative answer by the jury to a special interrogatory whether such pedestrian's 'inability to see [was] a contributing cause, in any degree, to her falling in an open drainage ditch,' where such interrogatory does not contain the necessary qualifying words 'direct and proximate cause,' does not amount to a finding that such pedestrian was negligent and that such negligence contributed to the proximate cause of her injuries and is not repugnant to a general verdict for such pedestrian.

Merritt E. Schlafman, Fairborn, for appellant.

Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for appellee.

PER CURIAM.

This is an appeal on questions of law from a judgment entered by the Common Pleas Court of Greene County on a verdict of a jury returned in favor of the plaintiff in the sum of $7,500.

Plaintiff sued the city of Fairborn for damages arising out of personal injuries which she suffered when, on a dark night, she fell into an open drainage ditch along a street in the city. Plaintiff's action was based on negligence, in that the city failed to guard the ditch or errect barriers and failed to have the street lighted. The defendant, by way of defense, alleged that the street was free from nuisance and that plaintiff assumed the risk and was contributorily negligent.

The facts adduced from the evidence are concisely stated in plaintiff's brief as follows:

'The appellee, Vinia Roberts, is a woman in her sixties who has lived at the northeast corner of Harvard and McLaughlin Streets in the city of Fairborn, Greene County, Ohio, for a number of years. Her daughter-in-law, Edna Hill, lived at 420 Robbins Street at the southeast corner of Robbins and Harvard Streets, the two homes being a block apart.

'None of these streets is paved, the surface consisting of gravel. There are no sidewalks, nor curbs, and Robbins Street and Harvard Street intersect at approximate right angles forming what is commonly known as a 'T' intersection, with Robbins Street joining Harvard Street on the east side. An open drainage ditch runs along the east side of Harvard Street adjacent to the traveled portion of the street, the drainage ditch passing beneath Robbins Street by means of a culvert constructed at the intersection. The drainage ditch is adjacent to and within two or three feet of the graveled area of these streets, both of which the evidence establishes are dedicated streets.

'On the evening of May 5, 1953, Mrs. Roberts left her home, walked south on Harvard Street and proceeded to the home of her daughter-in-law which * * * was located at the southeast corner of Robbins and Harvard Streets * * *. She remained at her daughter-in-law's home until sometime between nine o'clock and nine-thirty when she left to return to her home. It was dark at that time. She was alone.

'A street light located on the south side of Robbins Street, immediately east of the intersection of Robbins Street and Harvard Street, was not lighted on the night of May 5, 1953. It had been defective in that respect for a period of at least a week or ten days. The appellee also testified that * * * she had no recollection of having been there after dark before the night the accident occurred.

'There were no guard posts or guard rails or other warning devices located at the intersection at the point where the drainage ditch went under the roadway. The evidence establishes that at that point the drainage ditch was about three feet deep.

'The appellee, Vinia Roberts, testified that she left by the front door which faced on Robbins Street, she veered to the west, got on the driveway and followed it out to Robbins Street. She testified that she was watching the white gravel of the roadway, attempting to guide herself by that means, and that she thought she was in the middle of the roadway. Because of the darkness she inadvertently deviated from her course and fell into the ditch.'

Eight errors are assigned.

1. By pleading over, upon the demurrer to the petition being overruled, the defendant waived the error, if any.

2. We find no error in overrulling defendant's motion to withdraw a juror and declare a mistrian. It does not appear that the brief conversation between the husband of the plaintiff and a juror was prejudicial or in any way influenced the verdict. Hawkins Downie Co. v. Hagan, 20 Ohio Law Abst., 463; Stremmel v. Lynch, 17 Ohio Law Abst., 197. Whether a juror has been guilty of misconduct rests solely within the discretion of the trial court. A reviewing court will not disturb the judgment unless there is shown an abuse of discretion. Lingafelter v. Moore, 95 Ohio St. 384, 389, 117 N.E. 16; Moody v. Vickers 79 Ohio App. 218, 72 N.E.2d 280; Weaver v. Gale, Ohio App., 91 N.E.2d 808.

The third, sixth, seventh and eighth assignments...