Opinion
No. 35803
Decided July 1, 1959.
Municipal corporations — Duty to keep sidewalks in repair and free from nuisance — Concrete slab elevated above level of adjoining slab — Defect not of substantial nature.
CERTIFIED by the Court of Appeals for Cuyahoga County.
This action was brought to recover for personal injuries alleged to have been sustained by plaintiff while she was walking on a sidewalk of the defendant city. She claims the injuries resulted from a fall caused by a defective condition of the sidewalk. The defect complained of was an elevation of a portion of one section of the concrete sidewalk above the adjoining section. which caused her to stub her toe and fall.
It appears from the record that the accident occurred in the afternoon of a bright clear sunny day. Plaintiff had walked over this particular part of the sidewalk at least once every week, and some weeks twice, for two and one-half years and during all that time did not notice any defect in the sidewalk until after she had tripped over it. She testified that the rise was one and one-half or two inches; that, excepting this one rise in the slab, the sidewalk in the vicinity was perfectly smooth and clean; and that there was no gap or spread between the cracks, nothing to obstruct the view of the surface of the walk ahead of her, and nothing to detract her attention from her walking and looking at the sidewalk ahead of her. It appears further that at the street edge of the sidewalk these two slabs were level with each other and the difference in elevation between the two started near the middle of the elevated slab and increased in elevation gradually toward the building line.
At the close of plaintiff's case, on motion of the defendant, the case was taken from the jury and judgment was entered for defendant.
The Court of Appeals affirmed the judgment, and, finding the judgment upon which they had agreed to be in conflict with the judgment pronounced by the Court of Appeals for Summit County in the case of Kindle v. City of Akron (unreported), the judges certified the record to this court for review and final determination.
Mr. A.H. Dudnik, Mr. E.W. Greenblatt and Mr. Fred Weisman, for appellant.
Mr. King A. Wilmot, director of law, for appellee.
The record does not disclose a defect of such a substantial nature as to impose liability upon defendant under Section 723.01, Revised Code. The facts bring the case within the rule laid down in Gallagher v. City of Toledo, 168 Ohio St. 508, 156 N.E.2d 466, and Buckley v. City of Portsmouth, 168 Ohio St. 513, 156 N.E.2d 468. The judgment of the Court of Appeals is affirmed on authority of those cases, and final judgment is rendered for defendant.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.