Summary
construing the phrase "open, in repair, and free from nuisance" strictly, due to its being in derogation of common-law sovereign immunity
Summary of this case from Harp v. City of Cleveland HeightsOpinion
No. 31403
Decided December 15, 1948.
Municipal corporations — Duty to keep streets free from nuisance — Section 3714, General Code — Exception to nonliability for negligence while discharging governmental function — Qualified nuisance or nuisance based on negligence, defined — Pleading — Necessary to allege defect in street, when.
1. Under the provisions of Section 3714, General Code, the duty imposed on a municipality to keep its streets free from nuisance is an exception to the common law rule that a municipality is not liable for its negligence while in the discharge of a governmental function. (Paragraph one of the syllabus in the case of City of Hamilton v. Dilley, 120 Ohio St. 127, approved and followed.)
2. As distinguished from absolute nuisance, a qualified nuisance or nuisance based on negligence consists of anything lawfully but so carelessly done or permitted as to create a potential and unreasonable risk of harm which results in injury to another. (Paragraph three of the syllabus in the case of Taylor v. City of Cincinnati, 143 Ohio St. 426, approved and followed.)
3. A qualified nuisance is not shown by the allegations of a petition from which it appears that a municipality was engaged in the performance of its statutory duty of caring for its streets and there is no allegation showing a defective condition in the street itself. (Paragraph three of the syllabus in the case of City of Wooster v. Arbenz, 116 Ohio St. 281, approved and followed.)
APPEAL from the Court of Appeals for Hamilton county.
In the Court of Common Pleas the plaintiff instituted this action to recover from the defendant city of Cincinnati for injury to his person and damage to his automobile by reason of a collision with a truck on which was mounted a steam street cleaner being operated by the city.
The allegations of the plaintiff's petition are in part as follows:
"Plaintiff says that Ludlow avenue is a duly dedicated and a much travelled thoroughfare in the city of Cincinnati and runs in a general westerly and easterly direction. That near its westward terminus there is a viaduct known as the Ludlow avenue viaduct over Mill creek and certain railroad tracks. Plaintiff says that no parking is permitted at any time on said viaduct and that signs to that effect are so erected along said viaduct.
"Plaintiff says that on or about the fourth day of December, 1946, the defendant, by and through its agents and employees, was operating a steaming unit, installed on a 1932 Biederman truck, on the west half of said viaduct; that said truck was parked on the north side of said viaduct and in the lane of traffic normally used by motorists in driving westward over said viaduct.
"Plaintiff further says, that the defendant through its agents and employees, operated said steaming unit in such a manner as to create a dense cloud of steam which completely obscured both the truck, with the steaming unit installed, and the agents and employees of the defendant, operating the same, from the view of those travelling in a westerly direction over said viaduct and gave the appearance that said steam was coming from underneath said viaduct; that said steam extended the entire width of said viaduct and was similar to the clouds of steam made by locomotives when passing underneath said viaduct.
"Plaintiff further says, that the defendant had placed no signs of warning of any kind whatsoever indicating that the said viaduct was not open to travel going in a westwardly direction over said viaduct, or that said lane of traffic was obstructed by reason of the truck being parked on the north side of said viaduct and obscured from view by reason of the dense cloud of steam.
"Plaintiff says, that on or about said date, he was driving his 1941 Oldsmobile coach automobile across the Ludlow avenue viaduct; that when his car had passed over the center portion of the viaduct and proceeding down grade towards Knowlton's corner, he observed said dense cloud of steam on the north side of said viaduct; that vehicles travelling in a westerly direction and driving in the car tracks drove into said dense cloud of steam which was similar to the dense cloud of steam made by locomotives passing underneath said viaduct. Plaintiff states that he drove into said cloud of steam believing said cloud of steam was made by a locomotive and struck the Biederman truck then and there parked on said viaduct and obscured from view.
"Plaintiff says that the defendant in parking said truck and in operating said steaming unit in the manner aforesaid did so negligently and carelessly and in such a manner as to create a potential and unreasonable risk of harm which in due course resulted in the injuries to the plaintiff and his automobile.
"Plaintiff says, that there is a duty imposed by law upon the defendant to keep said viaduct open and free from nuisance."
To this petition the defendant city filed a demurrer on the ground that the facts alleged by the plaintiff are not sufficient to show a cause of action.
The Court of Common Pleas sustained the demurrer and dismissed the petition for the two reasons "that the nuisance complained of in the plaintiff's petition did not relate to a condition or defect in the street itself within the purview of Section 3714, Ohio General Code; further, the court finds that the petition itself indicates the plaintiff violated the provisions of Section 6307-21, General Code of Ohio, by not driving within the assured clear distance ahead and was therefore guilty of negligence."
On an appeal to the Court of Appeals on questions of law the judgment of the Court of Common Pleas was affirmed.
The case is in this court for review by reason of the allowance of the plaintiff's motion to certify the record.
Messrs. Peterman, Calhoun McPherson, for appellant.
Mr. Henry M. Bruestle, city solicitor, and Mr. William A. McClain, for appellee.
The plaintiff has based his action on the theory of a nuisance created by the defendant city in violation of the provisions of Section 3714, General Code, reading as follows:
"Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, acqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."
At the threshold of this discussion is should be observed that the plaintiff makes no contention concerning an absolute nuisance.
And the defendant concedes that under the first paragraph of the syllabus in the case of City of Hamilton v. Dilley, 120 Ohio St. 127, 165 N.E. 713, "the duty imposed upon municipalities in Ohio by Section 3714, General Code, to keep its streets free from nuisance, is an exception to the rule of common law that no liability attaches to a municipality for negligence in the discharge of a governmental function."
However, the parties are in vigorous disagreement as to whether the properly pleaded facts are sufficient to show a qualified nuisance resulting from negligence. The plaintiff relies on two paragraphs of the syllabus in the case of Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A. L. R., 44, in which this court held:
"3. As distinguished from absolute nuisance, a qualified nuisance or nuisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.
"4. Section 3714, General Code, requiring a municipality to keep its streets open, in repair and free from nuisance, does not enjoin upon municipalities a specific legal requirement, but provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist."
In determining whether the properly pleaded facts show a qualified nuisance it should be noted that the defendant was engaged in cleaning work which the law not only does not prohibit but requires, namely, that the city care for its streets and viaducts. It should be observed, too, that the factual allegations contain nothing tending to show other than a normal operation of the cleaning machinery.
Furthermore, as stated by the Court of Common Pleas, the nuisance complained of in the plaintiff's petition does not relate to a condition or defect in the street itself. Among the decisions cited by the plaintiff is the Dilley case, supra, which involved a raised, unlighted platform in a safety zone constructed in the street. The case of Yackee v. Village of Napoleon, 135 Ohio St. 344, 21 N.E.2d 111, involved an overhead bridge constructed with insufficient clearance. The case of Gottesman, Admr., v. City of Cleveland, 142 Ohio St. 410, 52 N.E.2d 644, related to large corrugated conduit pipes which the city permitted to remain loose on the ground in one of its public parks for a long period of time. The Taylor case, supra, involved a large elm tree located about twenty inches outside the paved portion of the road but within the dedicated limits thereof. The case of Gaines v. Village of Wyoming, 147 Ohio St. 491, 72 N.E.2d 369, related to a rifle range constructed and maintained by the municipality on its public grounds.
The defendant relies strongly on the decision of this court in the case of City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A. L. R., 518. In the third paragraph of the syllabus relating to the obligations imposed by the provisions of Section 3714, General Code, the court unanimously held as follows:
"3. The duties and obligations thus imposed are in derogation of the common law and must therefore be strictly construed, and the provisions of that legislation cannot by implication or interpretation be extended to make a municipality liable for the negligence of its servants while engaged in the act of making improvements to streets, unless such negligence relates to a condition of the street itself and the damage is caused by a defective condition thereof."
That case involved a collision between the plaintiff's automobile and a truck owned and operated by the defendant city while engaged in hauling cinders for the repair of a street. The trial court directed a verdict in favor of the defendant. That judgment was reversed by the Court of Appeals. Then on an appeal to this court the judgment of the Court of Appeals was reversed and that of the Court of Common Pleas affirmed. That decision never has been overruled.
Hence, in the instant case this court is in agreement with the lower courts that the particular circumstances alleged in the plaintiff's petition do not show a qualified nuisance.
In the absence of such allegations it is unnecessary to consider the further question of contributory negligence on the part of the plaintiff himself.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MATTHIAS, SOHNGEN and STEWART, JJ., concur.
HART, J., concurs in paragraphs one and two of the syllabus and in the judgment, but dissents from paragraph three of the syllabus.
ZIMMERMAN, J., concurs in paragraphs one and two of the syllabus, but dissents from paragraph three of the syllabus and from the judgment.
TURNER, J., not participating.
I concur in the first and second paragraphs of the syllabus but dissent from the third paragraph on authority of City of Cleveland v. Ferrando, a Minor, 114 Ohio St. 207, 150 N.E. 747; Gottesman, Admr., v. City of Cleveland, 142 Ohio St. 410, 52 N.E.2d 644; Gaines v. Village of Wyoming, 147 Ohio St. 491, 72 N.E.2d 369, and City of Cleveland v. King (Ohio), 132 U.S. 295, 33 L.Ed., 334, 10 S. Ct., 90. I distinguish City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, wherein the city of Wooster was charged with an act of negligence, not with a nuisance as in the instant case, governed by Section 3714, General Code.
However, I concur in the judgment on the ground that the plaintiff violated the assured-clear-distance-ahead statute, Section 6307-21, General Code, by driving his automobile into an observable cloud of steam which enveloped and rendered invisible a truck with which he collided, and thereby became chargeable with contributory negligence as a matter of law. Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Skinner v. Penna. Rd. Co., 127 Ohio St. 69, 186 N.E. 722; Greenland v. City of Des Moines, 206 Ia., 1298, 221 N.W. 953; Elrich v. Schwaderer, 251 Mich. 33, 230 N.W. 902; Bowmaster v. Wm. H. DePree Co., 252 Mich. 505, 233 N.W. 395; Perkins v. Great Central Transport Corp., 262 Mich. 616, 247 N.W. 759; Mason v. C. Lewis Lavine, Inc., 302 Pa. 472, 153 A. 754.