
    City of Zanesville v. King.
    (Decided April 4, 1930.)
    
      Mr. T. F. Thompson, for plaintiff in error.
    
      Messrs. George & Leasure, for defendant in error.
   Lemert, J.

This is an error proceeding, and comes into this court from the court of common pleas of Muskingum county, Ohio, it being an action filed in the common pleas court on April 2, 1929, by Rozella N. King, against the city of Zanesville, Ohio, praying judgment against the city in the sum of $2,500, alleging, in substance, that said city on said date maintained a certain public alley, extending from Jackson street south to Lee street between Fulton street and Blue avenue, which alley was allowed to become out of repair in this, to wit, that said city permitted a certain city water plug to remain in the alley, situated near the center thereof, said plug being about six inches in diameter and about four inches above the surface of said alley.

It is further alleged in the petition that the said Rozella N. King, in order to reach a street car on Lee street, to go to work one morning, early, proceeded southerly in said alley, and stumbled over said water plug and fell, resulting in certain physical injuries.

The city of Zanesville filed an answer to this petition, admitting the maintaining of an alley, that it was a public alley, that there was a certain water plug in the alley, situate near the center thereof, being about six inches in diameter, and that said plug was placed in said alley by employees of said city, but denies the other allegations in the petition.

The cause was tried before a jury, and plaintiff was awarded judgment in the sum of $750. A motion for a new trial was filed on behalf of said city and overruled. The cause now comes into this court upon a petition in error filed on behalf of the city, asking that the judgment of the court below be reversed.

The plaintiff in error by its petition claims several, or the usual, grounds of error, but it relies principally and chiefly upon three grounds, to wit:

1. That the court erred in its charge to the jury as to the violation of the statute or ordinance by defendant below, and erred in admitting, on behalf of plaintiff, Section 413 of the city ordinances, over the objection of defendant.
2. Plaintiff in error claims that the court erred in refusing to charge the jury as requested by it, the defendant below1,
3. Plaintiff in error contends that the judgment rendered did not respond to the law and the evidence.-

Coming now to consider the grounds of error insisted upon by plaintiff in error, to wit, the first ground, that the court erred in its charge to the jury relative to the violation of the statute or ordinance by defendant below, we find that the court charged: “I further charge you that the violation of the statute or ordinance, passed for the protection of the public, is negligence per se—that is, of itself —and where such act of negligence by the defendant is the direct and proximate cause of the injury, not directly contributed to by the injured person, the city is liable,” etc.

It is further claimed by the plaintiff in error that the court erred in admitting on behalf of plaintiff Section 413 of the city ordinance, over the objection of defendant. Said city ordinance reads: “It shall be unlawful for any person to place or to permit to be placed in any street or alley of this city any firewood, lumber or material for building, to remain a longer time than one day, except as hereinafter exempted, or to place or to permit to be placed in any street or alley any shavings, chips, ashes, earth, stone, brick, gravel, sand, manure, filth, nuisance or obstruction of any kind whatever, to the annoyance, detriment or inconvenience of those residing in the neighborhood, or to the public, in the free use of said street or alley. Any person offending against any of the provisions of this section shall be fined in any sum, not more than five dollars, and every twenty-four hours that any such nuisance or obstruction shall remain afterwards shall be considered as a new offense, and the offender, on conviction thereunder, shall be fined not exceeding five dollars for each offense.”

After a careful examination of the testimony introduced in this case we find and hold that the charge of the court to the jury with reference to this ordinance, and the admitting of such ordinance in evidence and permitting counsel for plaintiff to read same to the jury, was error.- We further find and believe it was prejudicial error.

There was nothing in the entire evidence on behalf of the plaintiff that authorized or would warrant the court in making such a charge. The charge would have the tendency to, and no doubt did, instill in the minds of the jury that from the evidence as adduced the defendant below violated one of its own ordinances, which would, in law, amount to a misdemeanor and thereby subject the city, itself, to a fine; or, in other words, that the city, itself, could not violate its own ordinance.

Taking the evidence as a whole the only thing it shows is that several years ago the city had constructed a water plug in said alley, and that, from the wearing away by water and automobiles of some dirt on one side of the plug, part of the plug for three or four inches had become exposed.

With reference to the other claimed charges of error complained of by plaintiff in error, we find there is no error.

It therefore follows, for the reason hereinbefore given, that there is error in this case prejudicial to the rights of the plaintiff in error, the defendant below, and the judgment herein will be reversed, and the cause remanded to the court below for further proceedings according to law.

Judgment reversed and cause remanded.

Sherick, J., and Roberts, J. (of the Seventh Appellate District), concur.  