Opinion
Nos. 28822 and 28838
Decided April 1, 1942.
Bridges — Statutory duty upon county and municipality to keep in repair, when — Injured person may maintain action against both county and municipality, when — Two forms of verdict submitted to jury, without objection — General verdict returned for plaintiff — Counsel may not thereafter complain that forms and verdict indefinite, when — Supreme Court — Evidence not weighed to determine where preponderance lies, when — Excessive verdict claimed.
1. A statutory duty rests on both the county and the municipality to see that a bridge erected and maintained by a county and comprising a part of the street system in a municipal corporation is kept in repair, and one who is injured by the collapse of such bridge, due to a defective condition of which the county had actual notice and the city constructive notice, may maintain an action for damages against both the county and the municipality.
2. Where, in an action brought against two defendants, the trial court, without objection, submits two forms of verdict to the jury — one for use in the event the finding should be for the plaintiff and against both defendants, the other for use if the finding should be for both defendants, and both to be used if the finding should be for the plaintiff against only one defendant — and the court explains such verdict forms to the jury which later returns a general verdict for the plaintiff on one of the forms submitted, counsel for the defendants may not thereafter complain that the verdict forms and the verdict were indefinite.
3. Where one of the errors alleged before the Supreme Court is that the verdict of the jury was for an excessive amount, and there is evidence supporting the award, the Supreme Court is not required to weigh the evidence to determine where the preponderance lies.
APPEALS from the Court of Appeals of Mahoning county.
On the afternoon of May 23, 1939, while plaintiff was walking across the Division street bridge in the city of Youngstown, on the sidewalk provided for pedestrians, the bridge collapsed into the waters of the Mahoning river, carrying plaintiff with it. He brought an action for damages, grounded on negligence and nuisance, against the Board of Commissioners of Mahoning county and the city of Youngstown jointly, on account of personal injuries alleged to have been received, and recovered a substantial verdict and judgment in the Court of Common Pleas, which judgment was affirmed by the Court of Appeals.
The defendants' motions for certification were allowed by this court and the controversy is now here for review.
Concededly, Division street was established as a county road in 1879, and in 1889 was duly annexed to the city of Youngstown. It was stipulated and agreed by counsel "that on May 23, 1939, Division street was a duly dedicated and accepted public street within the corporate limits of the city of Youngstown and crossed the Mahoning river within said city by what is known as the Division street bridge."
The bill of exceptions shows that the bridge in issue was built by Mahoning county in 1913 as a temporary structure and was maintained by the county. Its length was approximately two hundred feet and its collapse or failure in May of 1939 was attributed by all of the witnesses who testified on the subject to the rotten condition of the timbers in the middle pier supporting the superstructure. This rotted condition was visible at the waterline, being the space between the high and low water marks. One side of the pier had settled slightly, causing the floor of the bridge resting thereon to tilt correspondingly. On May 4, 1938, an inspection of the bridge was conducted by the county engineer's office, at which time the rotten timbers were observed and repairs recommended. Such repairs were not made. Thereafter, a warning sign was placed by the county at either end of the bridge, limiting the weight of the load permitted to cross.
Admitted in evidence over the objection of the city of Youngstown was a letter received by the city in June of 1929 from the Division Street Improvement Club, condemning the Division street bridge as dangerous. The letter stated that as two of the club members were crossing the bridge in an automobile, the movement of the vehicle "shook the planks out of place in the walk causing the pedestrians to stumble and fall."
All of the witnesses who testified were called by the plaintiff, excepting two medical doctors.
Mr. Raymond L. Falls and Mr. Herbert L. Kerr, for appellee.
Mr. William A. Ambrose, prosecuting attorney, and Mr. Harold Tetlow, for appellants, Henry C. Brandmiller and others.
Mr. John A. Willo, director of law, Mr. Homer E. Carlyle and Mr. I. Freeman, for appellant, city of Youngstown.
It is urged that the trial court committed prejudicial error in refusing to allow counsel to examine the complete panel of those called as prospective jurors in the cause, and in denying each defendant the right to exercise four peremptory challenges.
Whatever merit there might be in those contentions if they had been raised at the proper time, it is evident from the bill of exceptions that the persons called for jury service were examined, accepted and sworn as jurors, before counsel registered any complaint in the particulars noted.
From this state of the record, we are of the opinion that if such rights existed they were waived, and that no basis exists upon which error may be predicated.
Both defendants deny liability to the plaintiff and assert that the trial court erred in overruling their respective motions for a directed verdict.
Sections 2408, 2421 and 7557, General Code, fix the duties and liabilities of counties with respect to bridges erected by them in cities and villages having no rights in the bridge fund created by taxation. By Section 2408, General Code, the board of commissioners of a county is answerable in its official capacity for damages sustained by reason of its negligence or carelessness in not keeping such bridges in proper repair.
Under Section 3714, General Code, the council of a municipality "shall have the care, supervision and control of public highways, streets, * * * bridges * * * within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."
Upon the facts of this case, the statutory duty rested on both the county and the city to see that the Division street bridge was kept in repair, and one injured through the neglect to perform the common duty imposed on both would have a cause of action against both. See, Village of Mineral City v. Gilbow, 81 Ohio St. 263, 273, 90 N.E. 800, 801, 25 L.R.A. (N.S.), 627, 629; City of Youngstown v. Sturgess, 102 Ohio St. 480, 132 N.E. 17; Cooper et al., Bd. of County Commrs. of Mahoning County, v. Bradlyn, 123 Ohio St. 392, 175 N.E. 603; 6 Ohio Jurisprudence, 158, Section 145; 25 American Jurisprudence, 843, Section 563.
The county had actual notice of the dangerous condition of the Division street bridge in ample time to have made the necessary repairs and, although it contends otherwise, the city of Youngstown had at least constructive notice that the bridge was defective. The rotted timbers of the center pier were visible at the water line over a considerable period of time. The signs erected at either end of the bridge in 1938 were a warning of weakness, and the tilting of the bridge floor should have been noticeable. The assistant city engineer conceded that his office had made no inspection of the bridge. While the trial court in the exercise of a sound judgment might have excluded the letter received by the city in June of 1929 calling particular attention to loose planks in the pedestrians' walk, it was specifically limited to notice of a defect in the bridge, and we think its admission was certainly not reversible error.
Defendant, the city of Youngstown, complains that the jury's verdict was indefinite. Without objection, the trial court submitted two forms of verdict to the jury.
After deliberating for a time, the jury returned to the court room for further instructions as to the form of verdict. Thereupon, the court stated:
"There are two defendants and I sent in to you two verdict forms, one a verdict for the plaintiff and one a verdict for the defendant or defendants. If you do not find for the plaintiff you should use the form which says 'verdict for the defendant' even though your finding was for both defendants. If you find for the plaintiff and against both defendants you would only use the verdict for the plaintiff. If you find for the plaintiff against only one defendant you would use the form of verdict for the plaintiff and would also use the verdict form for the defendant, writing in the name in the blank space there of the defendant against whom you do not find a verdict. If you find for both defendants then you would use simply the form, verdict for the defendant, and would not in that event of course use any form for the plaintiff."
One of the jurors still expressing doubt concerning the verdict forms, the court repeated in substance what had already been said. Further deliberations were then had and the jury returned its general verdict for the plaintiff in the amount of $15,000, making no use of the verdict form for the defendant. It would therefore seem certain, under the explanation of the court, that the jury intended its verdict to be against both defendants.
If counsel were not satisfied with the verdict forms as submitted, they should have made timely objection, and if they were in doubt as to the intention of the jury in the verdict returned, they could have polled the jurors.
Another error advanced is that the verdict is excessive. Plaintiff introduced the testimony of several medical doctors and a number of lay witnesses as to the nature and extent of his disabilities. Such testimony if believed supports a conclusion that due to his experience on May 23, 1939, plaintiff sustained injuries resulting in serious and permanent physical and mental impairment.
Furthermore, the question as to the excessiveness of the verdict was before the Common Pleas Court on the motions for a new trial, and the Court of Appeals also passed on the same matter adversely to the defendants. In a case of this kind, the Supreme Court is not required to weigh the evidence to determine where the preponderance lies. State, ex rel. Kobelt, v. Baker et al., Trustees, 137 Ohio St. 337, 29 N.E.2d 960.
No reversible error appearing in the judgment of the Court of Appeals, such judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.
BETTMAN, J., not participating.