Village of Leipsic v. Gerdeman
| Decision Date | 03 March 1903 |
| Citation | 67 N.E. 87,68 Ohio St. 1 |
| Parties | VILLAGE OF LEIPSIC v. GERDEMAN. |
| Court | Ohio Supreme Court |
Error to Circuit Court, Putnam County.
Action by Anna Gerdeman against the village of Leipsic. From a judgment of the circuit court affirming a judgment for plaintiff, defendant brings error. Reversed.
The action was for injuries which plaintiff alleges she sustained by slipping and falling on ice negligently permitted by defendant to form and collect on a certain sidewalk and street crossing on one of the streets of said village. In her petition she alleges, in substance, that: The incorporated village of Leipsic is a municipal corporation organized under the laws of the state of Ohio; that prior to and on the 15th day of January, 1899, Poplar street was one of the public streets of said village, and was much used and traveled by the citizens of said village and the public in general; that prior to and on said date said defendant maintained a sidewalk and street crossing on and along the west side of said Poplar street; that prior to said 15th day of January 1899. Where a certain other street of said village intersects and opens into said Poplar street, said sidewalk and street crossing were allowed by said defendant to become out of repair by the removal, by said defendant, of a section of said sidewalk and street crossing, 12 feet long, from its proper place; that where said section of sidewalk and street crossing had formerly been, and where it properly belonged as a part of said sidewalk and street crossing, there was a depression of considerable depth; that said depression had prior to said 15th day of January, 1899, filled with water and said water had frozen, of which fact plaintiff had no knowledge but of which defendant had knowledge; that on said 15th day of January, 1899, and at the time of the injury hereinafter complained of, said ice in said depression, from which said section of sidewalk and street crossing had been removed as aforesaid, was covered with frost, so that said ice was concealed, and was not visible to a person passing along and over the same. She further avers that early on the morning of said 15th day of January she was walking southward on said sidewalk along the west side of said Poplar street when she came to said depression; that in passing down off of the south end of said sidewalk and crossing she stepped down upon said frost and ice in said depression, and in so doing, without fault on her part, she slipped, fell, and was injured. Then follows a prayer for judgment. The village for answer to this petition, after admitting its incorporation, for a first defense, ‘ denies each and every other allegation of fact in said petition contained.’ And as a second defense it avers ‘ that, if said plaintiff received any injury whatever by reason of falling on said sidewalk as averred, it was caused by her own act, or want of care on her part causing and contributing thereto.’ On the trial of this cause in the court of common pleas there was a verdict and judgment for the defendant in error.
Syllabus by the Court
1. In an action against an incorporated village to recover for injuries sustained by slipping and falling on an icy sidewalk, where it appears that the accident occurred about 8 o'clock in the morning, and that the icy condition at the place where such accident occurred was caused by ice which had formed thereon only the night before, the village cannot be charged with constructive notice of the condition of such walk, and it is error to submit to the jury whether the village might by the exercise of reasonable care and diligence have had knowledge of the defect in time to have remedied it.
Watts & Moore and J. Werner, for plaintiff in error.
Bailey & Bailey and A. A. Slaybaugh, for defendant in error.
CREW, J. (after stating the facts).
The defendant in error, Anna Gerdeman, brought her action in the court of common pleas of Putnam county, Ohio against the plaintiff in error, the incorporated village of Leipsic, to recover damages for certain injuries which she alleges the sustained by slipping and falling on ice that had been permitted to form and collect on one of the sidewalks or street crossings of said village. Her action was one for negligence, and the negligence charged and relied upon was that the village had suffered and permitted said sidewalk and crossing to be and remain out of repair, and in an icy and unsafe condition. While her petition contains the allegation ‘ that said sidewalk and street crossing were allowed by said defendant (the incorporated village of Leipsic) to become out of repair, by the...
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