Opinion
No. 21867
Decided October 25, 1950.
Charge to jury — Special charge before argument — Adopting excerpt from opinion in reported case — Practice disapproved as tending to mislead jury — To be adapted to issues and explicit.
1. Although the adoption of an excerpt from an opinion in a reported case as a part of a special charge before argument is not necessarily erroneous or prejudicial, the practice is not to be approved and the giving of an instruction containing only a part of a principle set forth in an opinion, although correct as an abstract proposition of law, tends to mislead the jury and is prejudicial error.
2. A charge ought to be not only correct but so adapted to the issues in the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as it finds them from the evidence.
APPEAL: Court of Appeals for Cuyahoga county.
Mr. Coleman Kiss and Mr. Albert H. Kiss, for appellant.
Mr. Robert J. Shoup, Mr. John G. Cardinal and Mr. E. Sheldon Wirts, for appellee.
This is an appeal on questions of law from a judgment entered upon a verdict on behalf of the defendant.
Plaintiff was a passenger in an automobile operated in an easterly direction on St. Clair avenue in the city of Cleveland, upon which the defendant maintained a double set of streetcar rails. The city owns and operates the street railway. Automobiles were parked along the southerly curb of the street. Plaintiff's driver turned to his left onto the streetcar rails. The south rail was two inches higher than the brick pavement adjacent thereto for a distance of approximately 80 feet. It was raining and the street was in a slippery condition, and when the driver turned to his left to avoid the cars parked on his right, the front wheels of his car caught in the rail, skidded to the northerly side of the street and collided with a westbound automobile. As a result of the impact, plaintiff was thrown out upon the pavement and sustained injuries.
In her petition plaintiff alleged that her injuries were caused by the negligence of the defendant in maintaining St. Clair avenue in such condition as to constitute a nuisance in that the streetcar rail was maintained approximately two inches above the pavement; that such condition was dangerous and unsafe for vehicular traffic; and that it had existed for many months. The answer was a general denial.
At the conclusion of the evidence, upon plaintiff's request, the court correctly charged the jury as to the duty of the defendant to keep its streets open, in repair and free from nuisance. But upon request of the defendant, the court gave the following instruction, which is assigned as error:
"1. The court instructs you, as a matter of law, that the city of Cleveland is not an insurer of the safety of persons in the use of its streets. The city is not obliged to keep its streets in such condition that it is impossible for accidents to happen. The city can not be held responsible for injuries caused by every depression, difference in grade, or unevenness in the streets." (Italics supplied.)
The court, at defendant's request, also instructed the jury as follows:
"2. The court instructs you, as a matter of law, that the city can not be expected to have its streets perfectly smooth and free from all unevenness and is not required to have them in a state of perfection; it is held to reasonable care only, and is not bound to anticipate improbable or unprecedented events and provide against their possible results."
In the general charge, the court said:
"Under the law of the state of Ohio a municipality, and Cleveland of course is a municipality, is obligated to keep its streets open, in repair and free from nuisance. That is the statutory obligation which the city of Cleveland owes, that the city of Cleveland is obligated to perform for people in the rightful use of the streets.
"That does not mean that the city is an insurer. It does mean that the city must use ordinary and reasonable care to so maintain its streets as to be in a reasonably safe condition for the usual and customary mode of travel upon its streets."
The duty resting upon municipal corporations, under Section 3714, General Code, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipal corporations are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions thereon, after actual or constructive notice of their existence. The standard of care required to be exercised by municipal authorities in keeping streets in repair and free from nuisance is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions.
Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A. L. R., 44; City of Cleveland v. Amato, 123 Ohio St. 575, 176 N.E. 227.
The charge complained of was taken from the language of the opinion in City of East Cleveland v. Wald, 103 Ohio St. 373, 133 N.E. 798, reading as follows:
"A municipal corporation is not an insurer of the safety of persons in the use of its streets and sidewalks. City of Dayton v. Glaser, 76 Ohio St. 471, and Gibbs v. Village of Girard, 88 Ohio St. 34.
"`While a municipality must generally respond in damages for injuries caused by its negligence, acts, or omissions in connection with the streets and sidewalks under its care and control, it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks.' Cordish v. Bloom, Court of Appeals, Md., March 1, 1921 ( 113 A. 578)."
The charge as given is an apt illustration of the rule that although an excerpt from an opinion is not necessarily erroneous, the practice is not approved and may provoke error. American Hard Rubber Co. v. Pierce, 18 C. C. (N.S.), 278, 33 C. D., 32. It will be noted that the instant charge incorporated only a portion of the sentence quoted from Cordish v. Bloom, supra, and eliminated the qualifying phrase.
As in the case of a general charge, an excerpt there-from will be considered in the light of the charge as a whole, and a special charge will also be considered in connection with other special charges. Wymer-Harris Construction Co. v. Glass, Admx., 122 Ohio St. 398, 171 N.E. 857, 69 A. L. R., 517; Dietsch, a Minor, v. Mayberry, 70 Ohio App. 527, 47 N.E.2d 404.
Defendant asserts that, viewed in the light of the other special charges and the general charge, the court correctly charged the jury on the issues and the giving of the charge in question was not prejudicial. In support thereof, defendant cites Bartson, d. b. a. Bartson Driveway Co., v. Craig, an Infant, 121 Ohio St. 371, 169 N.E. 291, wherein it was claimed that a special instruction on contributory negligence was erroneous because it failed to include the rule of negligence as applied to a child. The Supreme Court held that the requested charge constituted a correct proposition of law and if counsel for appellant desired an instruction on the standard of care required of a child, it should have been requested. Under the well-established rule, an error of omission in a charge is not prejudicial.
A charge ought to be not only correct but also so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as it may find them from the evidence. Little Miami Rd. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep., 373.
The issue for the jury to determine was whether the elevation in the rail, however slight, was such a defect as to show that the city failed to keep the street in repair and free from nuisance. The jury could well infer from the last sentence of the requested charge (without the qualifying phrase found in Cordish v. Bloom, supra) that the defect was not such a difference in grade or unevenness in the street as would make the city responsible. The error was not removed by the special charge given at the request of the plaintiff and the commendably correct general charge. The judgment is therefore reversed and the cause remanded to the Common Pleas Court for a new trial.
Judgment reversed.
CONN and CARPENTER, JJ., concur.
CONN, FESS and CARPENTER, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.