Opinion
Decided February 10, 1941.
Municipal corporations — Loading zone for passenger busses in center of street — No provision for crosswalks leading thereto — Implied authorization to go to and from loading zone — Judicial notice — Facts considered by Municipal Court judge — Reviewing court to consider, when.
1. When a city has established a zone in the middle of a street where busses may load and unload passengers but has not provided crosswalks to such zone, the city impliedly authorizes passengers and prospective passengers to use reasonable means to go to and from such busses, municipal regulations to the contrary notwithstanding.
2. The existence of such parking zone, the absence of designated crosswalks leading thereto, the constant coming and going of passengers to and from such loading zone, and all surrounding circumstances appertaining thereto are proper subjects of judicial notice by a Municipal Court judge, and if properly noticed in such court, should be noticed and considered in the reviewing courts.
APPEAL: Court of Appeals for Hamilton county.
Mr. John A. Thorburn, for appellant.
Mr. Fred L. Hoffman, for appellee.
This case is here on appeal on questions of law from a judgment of the Common Pleas Court of Hamilton county, reversing a judgment of the Municipal Court of Cincinnati in favor of the plaintiff.
The Common Pleas Court rendered judgment in favor of the defendant.
Fifth street, between Walnut and Main streets in the city of Cincinnati, is some 200 feet wide. It is popularly known as Government Square, due to the location of the Federal building upon the north side of the street, which extends east and west. Main street is on the east. Crosswalks extend north and south on Main and Walnut streets. The city has set apart a space or strip extending from Main to Walnut streets, a little south of the center line of Fifth street, as a loading berth for the metropolitan busses operating in the city. This area is divided into sections, permitting each bus to move into its designated berth or section at a slight angle, with a divergence of the front of the bus toward the east, or Main street. Almost the entire length of the space between Walnut and Main streets is occupied by these busses, which remain in the loading berth only for a short time.
It is apparent that when the city of Cincinnati placed the loading berths for busses in the center of Fifth street, it impliedly authorized passengers or prospective passengers of such busses to use reasonable means to go to and from such busses, notwithstanding any other municipal regulation to the contrary. Any other interpretation of this situation would have the effect of either isolating the loading berths, or forcing passengers or prospective passengers to be law violators. 25 Ruling Case Law, 978, Section 228; 37 Ohio Jurisprudence, 552, Section 292.
No crosswalks are provided from either side of Fifth street to the loading zone, or from the crosswalks on Main and Walnut streets to such zone. Passengers and prospective passengers are constantly coming and going between the south curb of Fifth street and the loading zone. These are facts of which the judge of the Municipal Court, as such, was bound to take judicial notice (17 Ohio Jurisprudence, 75, Section 53; 20 American Jurisprudence, 130, Section 124), and of which this court as well as the Court of Common Pleas must take judicial notice. Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 612, 9 N.E.2d 671. This is also true as to municipal ordinances involved. At page 612 of the opinion in the Orose case, the Supreme Court states:
"It would seem to be a cardinal principle that a reviewing court should, in determining whether prejudicial error has been committed, put itself in the position of the trial court and judicially notice what was properly noticed below. The Supreme Court of the United States takes judicial notice of public acts of a state and also of private state statutes, where the state court does. Bothwell v. Buckbee-Mears Co., 275 U.S. 274, 279, 48 S. Ct., 124, 125, 72 L. Ed., 277; Gasquet v. Le Peyre, 242 U.S. 367, 371, 37 S. Ct., 165, 167, 61 L. Ed., 367; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 275, 35 S. Ct., 37, 41, 59 L. Ed., 220; Hanley v. Donoghue, 116 U.S. 1, 6, 6 S. Ct., 242, 29 L. Ed., 535; 15 Ruling Case Law, 1076, Section 15.
"In Hanley v. Donoghue, supra, the court say:
"`But in this court, exercising an appellate jurisdiction, whatever was matter of law in the court appealed from is matter of law here and whatever was matter of fact in the court appealed from is matter of fact here.'"
It is apparent, therefore, that in order for a prospective passenger to reach the bus, it is necessary for such passenger to enter the street and proceed to the bus either from the crosswalks at Walnut or Main streets or from the curbs of Fifth street.
The plaintiff, on the 19th of October 1939, at about 6:15 p.m., left the south curb of Fifth street and started toward a bus directly opposite such point. The path selected was the shortest distance to the bus, considering the various methods of approach mentioned above. She had proceeded only a few feet northwardly from the south curb of Fifth street when she was struck by an automobile backing into the space through which she was attempting to pass to the bus. The situation of the busses, the coming and going of passengers, and the necessity of crossing the open street were all factors obvious to any one using the street. There is evidence that the defendant gave a warning signal before backing, and looked to the rear.
An ordinance of the city of Cincinnati provides:
"It shall be unlawful to back any vehicle upon or within a highway unless such movement can be made without endangering the safety of any persons or property, and unless the operator shall first warn other persons of his intended movement by giving the signal prescribed therefor, in Section 74-96, and by an appropriate signal with his signalling device."
Section 6310-21, General Code, provides:
"Before backing, drivers of vehicles shall give ample warning, and while backing vigilance shall be exercised not to injure those behind."
Upon the trial of the case, the judge of the Municipal Court of Cincinnati evidently found that the defendant was guilty of negligence which was the proximate cause of the injuries suffered by the plaintiff, and that she was not guilty of contributory negligence.
An examination of the record causes us to conclude that there was substantial evidence to support the existence of such negligence, and no substantial evidence which would require a reviewing court to find that the plaintiff was guilty of contributory negligence.
These questions involve a decision upon the facts of the case and are questions for the trier of the facts.
Our conclusion is that the judgment of the Court of Common Pleas must be reversed, and that of the Municipal Court of Cincinnati affirmed.
Judgment reversed.
MATTHEWS, P.J., and HAMILTON, J., concur.