Opinion
No. 35576
Decided February 18, 1959.
Municipal corporations — Duty to keep sidewalks in repair and free from nuisance — Section 723.01, Revised Code — Manhole cover projecting above level of sidewalk — Defect not of substantial nature.
APPEAL from the Court of Appeals for Scioto County.
This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff when he fell on a public sidewalk in the defendant city. The fall is alleged to have been caused by the defendant city's negligence in not maintaining the sidewalk in a safe condition, in violation of Section 723.01, Revised Code. The defect complained of was a manhole or sewer-catch-basin cover projecting approximately two inches above the level of the surrounding sidewalk, on which cover plaintiff claims to have tripped.
The record discloses that the accident occurred in the daytime on a clear dry day; that at the time of the accident plaintiff was walking a picket line, picketing the place where he had been employed; that the cover was in the path of the picket line; that he began walking the picket line at 4 p. m. and walked back and forth for 20 minutes, when he was relieved; and that shortly after 4:30 p. m. he again started walking the picket line and between that time and 5 p. m., while so walking, fell on the cover.
Plaintiff testified that for four or five months he had lived over the place of business he was picketing and during all that time had passed this cover at least once each day and had never noticed its raised condition, and that at the time of the accident there was nothing obstructing his view. The evidence does not disclose that defendant city had actual knowledge of the alleged condition of the sidewalk, but there is testimony to the effect that the alleged condition had existed for a period of several years.
Defendant filed an answer containing two defenses, first, a general denial and, second, that, if plaintiff was injured as claimed, his own negligence and lack of care proximately contributed to his injury and damage.
The trial court submitted the case to a jury, which returned a verdict for plaintiff, on which judgment was rendered.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Bannon, Howland McCurdy, for appellee.
Mr. Edward V. Leach, Jr., city solicitor, and Mr. Earl E. Stephenson, for appellant.
A reversal of the judgment of the Court of Appeals is warranted by either of two grounds presented by the record in this case.
Plaintiff testified that he had passed the cover in question at least once a day for four or five months prior to the accident, and that he did not know of the alleged defect. He testified also that he walked the picket line for 20 minutes prior to the accident, was relieved from duty for a time and, shortly after returning to picket duty and with nothing obstructing his view or distracting his attention, tripped on the cover which was plainly visible. This failure to look and observe the condition of the sidewalk on which he was walking and had walked for four or five months was a failure to exercise ordinary care for his own safety, was negligence as a matter of law, proximately contributing to his injury, and is sufficient to defeat recovery.
Furthermore, the record does not disclose a defect of such substantial nature as to impose liability on the defendant city under Section 723.01, Revised Code. Gallagher v. City of Toledo, ante, 508, and cases therein cited.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.