Tolliver v. City of Newark
| Decision Date | 01 August 1945 |
| Docket Number | 30285. |
| Citation | 62 N.E.2d 357,145 Ohio St. 517 |
| Parties | TOLLIVER v. CITY OF NEWARK. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A municipal corporation has a dual character, the one public or governmental, the other private or corporate.
2. A municipal corporation ordinarily is not liable for failure or neglect in the exercise of a governmental function, but is liable for failure to perform or neglect in the performance of a corporate duty.
3. The enactment and enforcement of a municipal ordinance which provides for the regulation of traffic upon the streets involves the exercise of the police power, and a municipality is not liable for failure or neglect in the exercise of that governmental function.
4. By virtue of the provisions of Section 3714, General Code, the maintenance of municipal streets in a safe condition is made a corporate duty, and for a breach thereof the municipality is liable.
5. The alleged failure of a municipality to maintain a traffic sign in such a manner as to apprise drivers of vehicles of their duty to stop at a street intersection will not support an action for an injury resulting from a collision between two automobiles at such intersection.
Appeal from Court of Appeals, Licking County.
Brandt S. Hervey and Charles B. Holtsberry, City Sol., both of Newark, for appellant.
Paul V House, of Newark, for appellee.
Helen E. Tolliver (plaintiff, appellee here) brought this action against the cty of Newark (defendant, appellant here), for damages for personal injuries sustained in a collision between an automobile driven by plaintiff and an automobile driven by one James Beal. The collision occurred in the intersection of Garfield and Oakwood avenues, two public streets within the defendant city.
As the basis of claimed liability against the defendant, the amended petition contains the following averments:
'The defendant is a municipal corporation within the state of Ohio.
'That Garfield avenue and Oakwood avenue are public streets and highways within the city of Newark, Ohio, and said Garfield and Oakwood avenues have both been duly dedicated to public use. Oakwood avenue extends in a northerly and southerly direction and Garfield avenue intersects same at right angles.
'Plaintiff Helen E. Tolliver, on September 29, 1942, about 10:15 p. m., was driving an antomobile in a northerly direction on said Oakwood avenue and entered said intersection. At the time one James Beal entered said intersection, driving another automobile; said Beal proceeding in a westerly direction on Garfield avenue and at said intersection said Beal drove his said automobile into the automobile driven by plaintiff, the said two cars colliding and plaintiff suffered certain personal injuries hereinafter described from the impact of the said automobiles.
'Plaintiff says that her personal injuries, hereinafter described, were proximately caused by a nuisance created by the defendant on said Garfield avenue in the form and structure of two unauthorized 'Stop signs.' Said stop signs had been erected by agents and employees of the defendant on said Garfield avenue near said intersection several years prior to the date of the occurrence of plaintiff's injuries and the defendant had both actual and constructive notice of the erection and location of said signs. Said stop signs on Garfield avenue in substance recited 'Thru Street--Stop.' Plaintiff had been aware for a long time prior to the said collision of the location of said stop signs and drove into said intersection in reliance upon said stop signs as giving plaintiff the right of way.
'However, the city of Newark, Ohio, had at no time duly designated Oakwood avenue as a thru street, main thoroughfare, but as a matter of fact, had designated Garfield avenue as a thru street and main thoroughfare by ordinance No. 5068, effective April 5, 1938.
'Therefore, the agents and employees had wrongfully placed said stop signs on the wrong street and in violation of said ordinance, and a nuisance was thereby created endangering the lives and property of travelers on said streets and highways. And shortly after the accident agents and employees of the defendant removed said 'Stop signs' and placed them on Oakwood avenue near said intersection.
'Said nuisance was proximately caused by the negligence of agents and employees of the defendant in course of their employment by placing said stop signs on a street not authorized by ordinance or law.'
The amended petition also contains specific averments as to plaintiff's claimed injuries, together with a prayer for relief.
The defendant filed a general demurrer upon the ground that the amended petition does not state facts sufficient to constitute a cause of action.
The Court of Common Pleas sustained the demurrer and entered judgment in favor of the defendant.
Upon appeal on questions of law, the Court of Appeals (one judge dissenting) reversed the judgment of the Court of Common Pleas, and remanded the cause.
The case is in this court for review following the allowance of a motion to certify the record.
The single question presented is whether the amended petition states facts sufficient to constitute a cause of action against the defendant.
It is universally agreed that at common law a municipal corporation is not liable for failure in the performance of governmental functions. However, for many years liability has been imposed upon municipalities of this state, in connection with the care, supervision and maintenance of streets.
Section 3714, General Code, reads as follows:
The petition in this case is bottomed upon the claim that the defendant created and was maintaining a nuisance in Garfield avenue on September 29, 1942, when a collision occurred between the two automobiles, and that such nuisance was the proximate cause of plaintiff's injury. If, under the averments of the amended petition, the city did create and was maintaining a nuisance at that time and place, which was the proximate cause of plaintiff's injury, then plaintiff's amended petition states a cause of action--otherwise not.
In this case it should be kept clearly in mind that there is no claim of any defect either in Garfield avenue or in Oakwood avenue. Therefore, the question for decision under Section 3714, General Code, is limited to whether the defendant was maintaining a nuisance by reason of the two stop signs on Garfield avenue.
The gist of plaintiff's claim is that two unauthorized stop signs were placed on Garfield avenue, a designated main thoroughfare, at or near its intersection with Oakwood avenue, which was not so designated; that the municipality by its agents and employees had placed the two stop signs upon the wrong street and thereby created, and for several years prior to the collision had maintained, a nuisance at that intersection; and that at the time of the collision she was aware that the stop signs were on Garfield avenue and drove into the intersection in reliance upon the stop signs as giving her the right of way.
Ordinance No. 5068 is not set out and we have no knowledge of all the provisions thereof.
There is no averment in the petition that council did not authorize the placing of the two stop signs on Garfield avenue at or near its intersection with Oakwood avenue. The petition does aver that the stop signs were unauthorized, and were placed upon the wrong street. No facts are averred which warrant those allegations.
Plaintiff by the allegations of the amended petition draws the inference and asks us to do likewise, that, because Garfield avenue was designated a main thoroughfare and Oakwood avenue was not, the placing of stop signs upon Garfield avenue at or near its intersection with Oakwood avenue was unauthorized and that the stop signs were placed upon the wrong street.
A municipality has constitutional as well as legislative authority to control traffic upon is streets, to determine at what intersections traffic shall be required to stop, and to place stop signs at intersections where the municipal authority deems it reasonable and proper.
Reference is made in plaintiff's brief, to the Uniform Traffic Act (Sections 6307-1 to 6307-110, both inclusive, General Code).
The petition in this case clearly discloses that Garfield avenue was designated as a main thoroughfare in 1938. The effective date of the Uniform Traffic Act was September 6, 1941. Therefore, the provisions of that act are inapplicable here. Even if applicable, the Uniform Traffic Act does not extend or enlarge the liability of a municipality under Section 3714, General Code.
A municipal corporation has a dual character, the one public or governmental, the other private or corporate. In its governmental capacity it performs governmental functions, and in its corporate capacity it performs corporate duties.
Speaking generally, a municipality is not liable for negligence in the exercise of a governmental function. See Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N.E. 164, 27 A.L.R. 1497; City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518; Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976.
On the other hand, a municipality is liable for negligence in the performance of, or failure to perform, a corporate duty. See City of Hamilton v. Dilley, 120 Ohio St. 127, 165 N.E. 713; Yackee, Adm'x, v. Village of Napoleon, 135...
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