Yackee v. Village of Napoleon

• Decision Date: 03 May 1939
• Docket Number: 27213.
• Citation: Yackee v. Village of Napoleon, 135 Ohio St. 344, 21 N.E.2d 111 (Ohio 1939)
• Parties: YACKEE v. VILLAGE OF NAPOLEON et al.
• Court: Ohio Supreme Court

21 N.E.2d 111

135 Ohio St. 344

YACKEE v. VILLAGE OF NAPOLEON et al.

No. 27213.

Supreme Court of Ohio

May 3, 1939

Syllabus by the Court.

1. 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.

2. A municipality its liable to one who, exercising due care for his own safety, receives an injury because of a nuisance or dangerous condition created in its streets by another without its authority, if the injury occurs after the municipality acquires actual knowledge of the existence of such nuisance or after sufficient time has elapsed that under the circumstances it should have acquired knowledge of the existence thereof.

3. The acquiescence of a municipality in the maintenance by a railroad company of an overhead railroad bridge over one of its streets does not take away from the municipality its complete right of control over such street; nor does it give the railroad company the right to perpetually maintain the bridge as originally constructed. The right of the railroad company in this respect is at all times subject to the right of the municipal authorities to improve the street and change the grade thereof, as the public interest may require.

4. The maintenance of structures in a public street which interrupt public travel thereon and are public nuisances therein cannot ripen into a prescriptive right to an easement in favor of the party erecting or maintaining them.

5. Whoever, without express authority, materially obstructs or renders hazardous the use of a public street by placing structures upon, above or below the surface thereof, is guilty of maintaining a nuisance; and persons sustaining special damage as a result of such nuisance, if themselves free from fault, have a right of action against the person causing or continuing the same. The recovery in such cases is based not on negligence, but on injury suffered as a result of a wrongful or illegal act creating the nuisance.

6. Where an overhead railroad bridge, built and maintained by a railroad company within a municipality with latter's acquiescence and consent, originally met the reasonable requirements of travel over the street spanned by the bridge, but has since become insufficient in clearance above the street by reason of changed conditions in lawful modes of street travel, it is the duty of the railroad company to make such alterations in its bridge as become essential to so meet changed conditions as to permit such travel with reasonable safety. A failure to perform such duty, resulting in injury to a person coming in contact with such bridge while traveling upon the street underneath it, presents a jury question as to whether the railroad company was in the exercise of ordinary care in the premises.

This action was brought by Clara Yackee, administratrix of the estate of George Yackee, deceased, against the village of Napoleon and the Detroit, Toledo & Ironton Railroad Company, to recover damages for the alleged wrongful death of her decedent in July, 1934.

The accident causing Yackee's death occurred at the point where the railroad company's tracks cross at right angles over and above Canal street in the village by a railroad trestle or bridge. The position of the bridge and its level have remained constant since it was built in 1895, but in 1932 the defendant railroad company painted white and black parallel vision bars and signs on the bridge structure over the highway, indicating that the bridge had a vertical clearance of ten feet above the street. The record shows that for several years before the accident certain trucks traveling on the highway at this point had experienced difficulty in passing through under the bridge, and that the railroad company on one occasion was obliged to realign the tracks and bridge because they were out of position. The record also shows that on several occasions, beginning as early as 1915, the village council of Napoleon made complaint to the railroad company that the clearance between the surface of the street and the bridge was insufficient, and notified the railroad company to remedy the situation. While proposed changes were discussed between the council and the company, none was ever made. On one or more occasions suit was threatened by the village against the railroad company to compel the abatement of the situation as it affected the use of the highway at the point in question, but no suit was ever instituted.

At the time of the accident a beer truck loaded with beer cases, on the top of which Yackee was riding with his legs hanging over the side of the truck operated by another along Canal street, passed underneath the bridge at a rate of speed approximately twenty-five miles per hour. Yackee's head came in contact with the girder or lower edge of the bridge, striking him a severe blow above the right ear, from which injury he later died. From his position, if he had looked as the truck approached the bridge, Yackee could have seen it plainly at any time after the truck reached a point within three hundred freet of the bridge, it being daylight and a clear day.

There was a verdict and judgment against both defendants in the Common Pleas Court, which judgment on appeal was affirmed by the Court of Appeals, but the latter court in so deciding found itself in conflict with the Court of Appeals of Clark county in case No. 359, City of Springfield v. Hubbuch decided February 4, 1937, ^[1] and certified the record to this court for final review.

P. C. Prentiss, City Sol., of Napoleon, for appellant Village of napoleon.

Bodman, Longley, Bogle, Middleton & Farley, of Detroit, Mich., and James Donovan, Jr., of Napoleon, for appellant Detroit, T. & I. R. Co.

Otto W. Hess, George A. Meekison, and David Meekison, all of Napoleon, for appellee.

HART Judge.

The plaintiff brought this action for wrongful death on behalf of herself and her minor child against both the village of Napoleon and the railroad company, charging that both maintained the street in question in a dangerous condition, amounting to a nuisance, of which both had ample notice. The village took the position that the fault was wholly that of the railroad company in constructing and maintaining its railroad bridge, without authority from the village, in such manner as to create a dangerous situation. The railroad company claimed that the construction of its bridge over the street was adequate and sufficient when built; and that it was not bound to change the structure to meet the demands of new uses of the street, this being a responsibility of the village since the council alone had control of the street. Both defendants charged that plaintiff's decedent was guilty of contributory negligence in not taking precaution for his own safety, thereby causing his own death. The specific questions involved in this case are: (1) May a municipality be made liable in damages for the acts of another who, in erecting a structure upon or over a street in such municipality, creates a nuisance or a dangerous situation resulting in injury to one lawfully using such street, granting that the municipality had requisite notice of the existence of such nuisance or dangerous situation? (2) If a railroad bridge or trestle, when built over a public street by a railroad company, is suitable and sufficient in vertical clearance for the then type and amount of traffic on the street, is it the duty of such railroad company to increase such vertical clearance so as to accommodate a subsequent change in type and amount of traffic on the street under the bridge; and if such railroad company fails to make such change in vertical clearance under such circumstances, does it become liable in damages to one lawfully using such street who is injured by coming in contact with such bridge or trestle because of insufficient vertical clearance? (3) Is a person who is injured by coming in contact with an overhead railroad bridge or trestle with insufficient vertical clearance, while riding on top of a truck operated by another over a public street underneath such bridge, guilty of negligence or contributory negligence as a matter of law, when, if he had looked at any point on the street within three hundred feet of the bridge, he could have seen plainly the position of such bridge or trestle and the vertical clearance between it and the street? These problems will be discussed in order.

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, 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 surface of the street. 'The public right goes to the full width of the street and extends indefinitely upward and downward so far at least as to prohibit encroachment upon such limits by any person by any means by which the enjoyment of such public right is or may be in any manner hindered or obstructed or made inconvenient or dangerous.' 44 Corpus Juris, 1007, note. This applies where a wire is stretched above and across a street (Wheeler v. City of Fort Dodge, 131 Iowa 566, 108 N.W. 1057, 9 L. L.R.A.,N.S., 146); or a bridge or covered viaduct erected between upper stories of buildings on opposite sides of the street (Bybee v. State, 94 Ind. 433, 48 Am.Rep. 175), or a rope stretched across...