Opinion
No. 35855
Decided July 1, 1959.
Municipal corporations — Duty to keep sidewalks in repair and free from nuisance — Concrete slab projecting above level of adjoining slabs — Defect not of substantial nature.
APPEAL from the Court of Appeals for Summit County.
This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff as the result of a fall while she was walking on a public sidewalk in the defendant city. The fall is claimed to have been caused by a defective condition of the sidewalk. The only defect alleged in the petition is that one slab of the concrete sidewalk projected above the adjoining slabs a distance of one and one-half inches.
The answer denies generally the allegations of the petition and as a second defense alleges that plaintiff's own negligence in failing to exercise her sense of sight or powers of observation was the sole, direct and proximate cause of her injuries.
The jury returned a verdict in favor of the plaintiff.
Defendant's motion for judgment non obstante veredicto was overruled, and judgment was entered on the verdict.
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. Myers, Myers Myers, for appellee.
Mr. John M. Kelly, director of law, and Mr. Rufus L. Thompson, for appellant.
There is no bill of exceptions properly before this court, nor was there one properly before the Court of Appeals. Under our recent decisions, however, the petition fails to allege a defect in the sidewalk of such a substantial nature as to justify the imposing of liability on the defendant city. Gallagher v. City of Toledo, 168 Ohio St. 508, 156 N.E.2d 466; Buckley v. City of Portsmouth, 168 Ohio St. 513, 156 N.E.2d 468. The record does not show a request for leave to amend the petition.
One of defendant's assignments of error in the Court of Appeals, and also in this court, is that the trial court erred in overruling the motion of defendant for judgment notwithstanding the verdict. On the record before the court, that motion should have been sustained.
The judgment of the Court of Appeals affirming the judgment of the trial court is reversed, and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.