
    The Village of Barnesville v. Ward.
    
      Street wide enough for park strip for dowers, etc. — Barriers placed around park strip — Not obstructions or nuisances, when — ■ City may not maintain dangerous barriers around strip — Liability of city to one undertaking to pass over strip.
    
    1. Where a street is sufficiently wide that enough will remain unobstructed for the purpose of public travel, a municipality may maintain or permit to be maintained, park strips between the curbing of the paved street and the pavement of the sidewalk in which strip grass, flowers and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may by proper barriers prevent travel thereon.
    
      2. The trees, grass and flowers growing thereon and proper barriers placed around the same to protect them, are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a. municipality open, in repair and free from nuisance.
    3. A city may not maintain or permit to be maintained, a fence, wire or other barrier around such park strips dangerous to the life or safety of any traveler who undertakes to pass over the same, and if a pedestrian in the exercise of due care for his own safety is injured by reason of the dangerous condition of such barrier the municipality is liable in damages for such injury if it knew, or in the exercise of ordinary care, ought to have known the dangerous condition thereof.
    (No. 12894 —
    Decided October 31, 1911.)
    Error to the Circuit Court of Belmont county.
    Josiah P. Ward brought a civil action against the village of B arnésville in the common pleas court of Belmont county, praying damages in the sum of $10,000 for personal injuries sustained by him in tripping and falling over a wire placed between the paved sidewalk and the curb on the east side of Arch street, south of Walnut street, in said village. In his petition he averred that this wire was supported upon posts, or stakes, about two feet high and 18 inches apart at each end, and about 30 feet from end to end, and that the wire was stretched around these stakes and was permitted to sag in the middle so that it was about 8 inches high at the place where he was injured; that this obstruction had been continued there for many weeks prior to December 10, 1908; that the same was dangerous and likely to injure pedestrians lawfully going upon said street, all of which the defendant village well knew, or in the exercise of ordinary care ought to have known, and that plaintiff had no notice or knowledge of such dangerous condition and that in the night season of December 10, 1908, while he was carefully-walking on said street he was tripped by said wires, and violently thrown upon the curb and pavement, sustaining severe injuries, for which he asks damages.
    The village for its answer admits it is a municipal corporation; admits that Arch street is a public street of said village frequently traveled and used as such by the public generally and improved by paved sidewalks, curbing and street paving, and denies every other allegation of ■ the petition.
    For a second defense it denies plaintiff was injured in the manner alleged in the petition, and avers that if he was injured in any manner or form whatever that his own negligence and want of care contributed to that injury. The defendant for a third defense avers that that portion of the street around which this wire was stretched was a grass plat between the paved sidewalk and the curb of the street; that the defendant village adopted, established, permitted and maintained a plan and system of leaving a strip of ground between the outside of the paved portion of the sidewalks and the inside of the curb of said paved street on which to maintain grass plats and shade trees in order to beautify, ornament and add to the cleanliness and healthfulness of said streets, and in accordance with said plan and system trees were permitted to be placed and grow upon said strip of ground and grass was sown thereon, or the same was sodded; that passageways were made over ánd across said strip of ground leading from the paved part of the sidewalk to the curb, over which pedestrians could pass when wishing to cross to the opposite side of the street; and that said strip of ground by reason of the grass and shade trees thereon growing indicated to pedestrians that it was not to be used as a part of the sidewalk and was not intended to be traveled or crossed by pedestrians.
    It is also averred that the defendant knew, or ought to have known before, and at the time of his injury, that such strip of ground was not to be used for the purpose for which he attempted to use it; that there was no occasion or necessity for his attempting to so use it and in doing so he assumed all risk and hazard of danger. Defendant denies that it was charged with any duty or obligation to keep that portion of the strip of ground occupied by trees' and grass plats, and located between the regular passageways leading from the portion of the sidewalk to the curb of the street open for travel, in repair and free from obstructions.
    For a fourth defense defendant avers that the plaintiff attempted to pass from the paved portion of the sidewalk over and across said strip of ground and grass plat, or lawn, to the curb of the street without necessity, and for his own pleasure and convenience departed from said paved portion of the sidewalk passageway and street crossings upon which he would have avoided injurv.
    The plaintiff replied denying the averments of the second, third and fourth defense.
    
      Upon the issue so joined the jury returned a verdict in favor of the plaintiff. A motion for new trial was overruled and judgment rendered upon the verdict, which judgment was affirmed by the circuit court. The plaintiff in error now seeks the reversal of the judgment of the common pleas court and the reversal of the judgment of the circuit court affirming the same.
    
      Messrs. Smith & Howard and Mr. J. C. Tail-man, for plaintiff in error.
    Ward knew or ought to have known of this system of public improvement and the reservation of a part of the street from travel and for comfort, health and ornamentation. He knew or ought to have known that this wire was there. Upon the matter of knowledge we submit the following authorities: Norwalk v. Tuttle, 73 Ohio St., 242; Schaefler v. Sandusky, 33 Ohio St., 246; Akron v. Keister, 6 C. C., N. S., 603; Bond Hill v. Atkinson, Admx., 16 C. C., 470; Cincinnati v. Taylor, 19 C. C., 737; Toledo v. Smith, 13 C C., N. S., 504.
    This, too, should be borne in mind, that the holding of the courts that a pedestrian may cross the ordinary traveled way, as he may find it convenient, is not holding that he may cross a part of the street properly reserved from travel just as he pleases, especially where there are not passageways provided through the reserved part. The holding goes no farther than to say that the passageway must be kept open and safe for travel. Dayton v. Taylor’s Admr., 62 Ohio St., 11; Rail
      
      road Co. v. Transportation Co., 32 Ohio St., 116; Groveport v. Bradfield, 2 C. C., 145; McCurdy v. Newark, 10 N. P., N. S, 526.
    We cite this last decision of the common pleas court of Licking county in the Newark case, which case seems to be precisely the same as the case at bar, to call attention to the reasons of the judge for his opinion, and to show that the lower courts of Ohio have differed on the rules of law. Raymond v. Lowell, 53 Am. Dec., 57; Wellington v. Gregson, 1 Pac. Rep., 253; Fockler v. Kansas City, 68 S. W. Rep., 363; Keith v. Worcester, 82 N. E. Rep., 680; Louisville v. Johnson, 69 S. W. Rep., 803; Larsen v. Sedro-Woolley, 94 Pac. Rep., 938; Bell v. Clarion, 84 N. W. Rep., 962; Alline v. Le Mars, 33 N. W. Rep., 160; Collins v. Dodge, 35 N. W. Rep., 368.
    Now we claim that the court in the case at bar charged the jury in the abstract and not in the concrete, and it was erroneous as given. Coal Co. v. Estievenard, 53 Ohio St., 59.
    A municipal corporation is not an insurer of the safety of persons using its streets, and is not subject to the usual conditions of such an insurer. Dayton v. Glaser, 76 Ohio St., 471.
    
      Mr. Albert W. Kennon and Mr. Newell K. Kennon, for defendant in error.
    The first instruction requested has no application to the facts of this case. This instruction does not even refer to the wires or any other obstruction, the gravamen of the case and jury’s inquiry; there is absolutely no evidence that the defendant had adopted such “plan” or “policy” to plant shade trees and grass, but, if so, the dangerous wires were not trees or grass.
    • As to the second instruction requested. We have stated there is absolutely no evidence tending to show that the defendant or its council permitted anything as to this sidewalk on Arch street or took any other action relative thereto. And this is an attempted insertion of contributory negligence, when not in issue, in some unrecognized shape and makes the startling announcement that the defendant is not liable to its citizens, or others, owes none any duty, for injuries from traps, contraptions or other dangerous obstructions on the sidewalk. Such doctrine is violative of humane principles, reason, law and express statutory imposition. Section 3714, General Code; Fockler v. Kansas City, 68 S. W. Rep., 363; Augusta v. Tharpe, 38 S. E. Rep., 389; Glasgow v. Gillenwaters, 67 S. W. Rep., 381; Olathe v. Mizee, 29 Pac. Rep., 754; Baker v. Grand Rapids, 69 N. W. Rep., 740; Brusso v. Buffalo, 90 N. Y., 681.
    The facts in the case of Groveport v. Bradfield, 2 C. C., 145, and in the case of Dayton v. Taylor’s Admr., 62 Ohio St., 11, easily differentiate those cases from the case at bar.
    In the case at bar the wire was not an ordinary danger ever present in a street reasonably well kept. It was a danger which, at the point where it existed and as long as it did exist, destroyed the street itself for the purposes for which the street was dedicated and maintained. Durbin v. Napoleon, 21 C. C., 160.
   Donahue, J.

The question presented by the record in this case is in some respects a novel one in Ohio. There seems to be neither a statute nor adjudicated case dispositive of some of the propositions urged by the plaintiff in error in its defense to plaintiff’s suit. It is undoubtedly the common practice in this state, and it would seem to be practically the universal interpretation of the law that where a street is sufficiently wide that enough will remain unobstructed to meet the needs of public travel, a municipality may maintain or permit to be maintained, park strips between the curbing and the paved street and the pavement of the sidewalk in which strip grass, flowers and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may, if it be deemed necessary, construct or permit to be constructed proper barriers around the same to prevent travel thereon, and such trees, grass and flowers growing upon such park strip and the proper barriers placed around the same to protect them are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a municipality in repair, open for travel and free from nuisances. This construction of the law would not authorize a municipality to maintain, or permit to be maintained, a fence, wire or other barrier around such park strip in such condition as to become dangerous to the life, or the safety, of any traveler who undertakes to pass over the same, and if a pedestrian in the exercise of due care for his own safety is injured by reason of the dangerous or defective condition of the barrier the municipality is liable in damages for such injury if it be shown that it knew or in the exercise of ordinary care should have known the dangerous condition thereof. The plaintiff in error contends that the trial court erred in refusing to give its first and second special requests. These requests were predicated upon the assumption that no matter if the wires placed around this strip of ground were so placed as to be dangerous that the plaintiff in going upon this strip was negligent and assumed all the risk of injury by reason thereof, and the court very properly refused to give the same.

That the plaintiff attempted to cross this park strip at a point other than where the passageways were provided was not negligence per se. Whether he was negligent in so doing under all the circumstances of the case was a proper question for the jury. It is claimed on behalf of this plaintiff that in passing along the pavement he saw directly ahead of him a quantity of ice that had accumulated there and that in order to avoid this ice he attempted to cross to the other side of the street at a place where no passageway across this park strip had been provided for that purpose, but that he had no knowledge whatever of the existence’ of this wire at this point and that the strip was so narrow, being only about eighteen inches wide that it could be easily covered by one step of a pedestrian, and, therefore, not likely to need such protection and the pedestrian would not naturally expect to find such obstruction there; that two stakes were driven at each end of the strip eighteen inches apart and thirty feet from end to end; that a small wire had been placed around the top of these stakes and had been permitted to sag in the middle so that at the point plaintiff attempted to cross it was not more than ten or twelve inches high; that the place was not lighted by any street lamp and the night was so dark that a pedestrian in the exercise of due care for his own safety could not see this wire or protect himself from injury therefrom, and that, therefore, this wire so placed and permitted to remain was a dangerous nuisance and likely to produce just such an injury to a pedestrian exercising due care for his own safety as the plaintiff sustained. There is evidence in this record in support of these facts upon which plaintiff rests his right to recover in this action.

The fact that a municipality may maintain or permit to be maintained a barrier around such strips to prevent pedestrians from going thereon does not authorize the maintenance of such a dangerous construction as would be a menace to the life or safety of a pedestrian exercising due care for his own safety in an attempt to cross over the same.

If the jury found from the evidence that this wire was in the condition described by some of the witnesses, then it could rightly find that it was not a barrier to prevent, but rather a device to trip and punish any one who would attempt to cross this strip in the night season. That a pedestrian has not sufficient civic pride to refrain from going upon or passing over this strip does not justify the placing of a nuisance there that might probably cause his death or do him great' bodily harm if he should .attempt to do so and the pedestrian could not be held to have assumed the risk of injury from such a device if it be shown that he had no knowledge of its existence’ and could not in the exercise of due care for his own safety see the same or be required to anticipate its presence. True, if he had collided with a tree or with a proper barrier placed there to prevent him from going upon the strip or with a stepping stone, or other obstruction that might reasonably be expected to be found there then the contention of the plaintiff in error that he assumed the risk of injury from such obstruction would obtain. In the absence of knowledge of the fact he could not be required to contemplate the existence of this wire placed so near the ground that it would not prevent his going upon the strip, but rather would more likely result in his injury than in the accomplishment of the purposes for which it is now claimed it was so placed, and while it might be a proper and sufficient guard in the day time, or even in the night season, if properly lighted, yet it was a question for the jury to determine whether under the circumstances of this case it was a legitimate barrier, one that he ought to have expected to meet and, therefore, assumed the risk of injury therefrom, or whether it* was a dangerous and unlawful nuisance, the existence of which he would not be required to have in contemplation at the time he attempted to cross the same.

It is also claimed on behalf of the plaintiff in error that the court erred in the rejection of the testimony of S. S. Foreman. The defendant sought to show by this witness the plan of the improvement of the streets of this village with reference to the maintenance of park strips between the curbing of the paved street and the paved portion of the sidewalks, and it was permitted to show this plan as fully as the nature of this defense required. The objections to the questions appearing on pages 255, 256 and 257 of the record were properly sustained for the reason then stated by the court that they were leading questions.

From the whole record it appears that the issue was properly submitted to the jury and that its verdict is sustained by evidence.

The judgment of the circuit court affirming the judgment of the common pleas court is affirmed.

Judgment affirmed.

Spear, C. J., Davis, Spiaucic, Price and Johnson, JJ., concur.  