
    The City of Dayton v. Glaser.
    
      Municipal corporation must Peep streets free 'from nuisance — But not insurer of safety of persons using them, when.
    
    A municipal corporation is charged with the duty of keeping its streets free from nuisance and in a reasonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.
    (No. 9991
    Decided June 25, 1907.)
    Error to the Circuit Court of Montgomery county.
    The plaintiff, defendant in error, in his amended petition, avers that he was driving in a grocery wagon upon one of the streets of the city, that the street was out of repair and dangerous to travel thereon in vehicles, because of the great number of holes therein from three to i five inches deep, when the wheels of the wagon ran into two of the holes, whereby it was so severely jolted that the curtains, which were rolled up and buttoned at the top, were unloosened, and being blown downward and outward by the wind and making a. noise, the plaintiff’s horse frightened thereat and ran away and threw plaintiff out, whereby he was permanently injured.
    A general demurrer being overruled the city answered, and at the close of plaintiff’s evidence the court directed a verdict for the defendant. On error the circuit court reversed.
    
      Mr. Thomas B. Herrman, city solicitor; Mr. P. G. Burnham; Mr. W. D. Cline and Mr. C. J. Brennan,. for plaintiff in error.
    •' The question what constitutes contributory negligence by persons going upon streets which they know to be in a dangerous condition, has been passed upon by this court in numerous cases. Schaefler v. City of Sandusky, 33 Ohio St., 246.
    We think the case at bar comes plainly within the rule laid down in the Schaefler case.
    (A) Glaser, by his own admission, acknowledges that he knew of tlie conditions of Keowee street, and had been over it many times before, and that he voluntarily attempted to pass over the street.
    (B) He could easily have avoided going over the dangerous part by taking the street car track, •as he had frequently done before, and which the testimony shows was in a good passable condition at that time.
    (C) Or, he could have gone another route, somewhat longer and less convenient, it is true, but not being in a hurry it would have been the safe course for him to have pursued in view of his knowledge of the condition of Keowee street. Village of Bond Hill v. Atkinson, Admx., 16 C. C., 470; City of Norwalk v. Tuttle, 73 Ohio St., 242; City of Cleveland v. Stofer, decided without report April 30, 1895, and cited in 33 W. L. B., 227; City of Akron v. Keister, 6 C. C., N. S., 603; Farmer v. Railway Co., 60 Ohio St., 36.
    The great weight of American authority .is in favor of the rule that a private action can not be maintained against a town, county or other quasi public corporation, for the neglect of a public duty, or of a duty imposed alike on all similar corporations, unless the liability to such action is expressly created by statute. Buswell on Personal Injuries, Secs. 53 and 168.
    The statute creating the liability (in this case Section 1535-131, Revised Statutes) is to be construed strictly in favor of the defendant.
    In the case at bar, two separate and distinct causes are alleged as combining to have led to the injuries complained of.
    1. The alleged defects existing in Keowee street at the time; and
    2. The wind which caused the curtains, which were jarred loose by the wagon dropping into the holes in the street, to blow outward and upward.
    The petition alleges and the proof shows that these two causes “together frightened said horse to such extent that he ran away and caused the injuries complained of.” Bitting v. Maxatawney Township, 177 Pa. St., 213; Marble v. City of Worcester, 4 Gray, 397.
    
      We call attention'to the fact that the rule as to a responsible intervening cause concurring in the accident can not be applied in this case since the wind as a cause is a factor over which neither had or could have control, and its existence at this time and at this place could not have been reasonably anticipated. Trust Co. v. Railway Co., 57 Fed. Rep., 441; West Mahanoy Township v. Watson, 116 Pa. St., 344.
    
      Messrs. Wright & Ozias, for defendant in error.
    There are two degrees of danger, the highest, where the danger is great, imminent, and obvious, or where the danger is so great, that no man of ordinary prudence would undertake to encounter it, and about which reasonable men would not differ. In this class, the courts have used the words, “reckless exposure,” “certain injury,” “fool hardy,” “took desperate chances,” “trusted in Providence and not in the circumstances,” and the like.
    All degrees of danger below the highest, are for a jury. Samples v. City of Atlanta, 95 Ga., 110.
    The true rule we contend for is, that a case should not be taken from a jury, unless the danger is of the highest degree.
    Glaser’s knowledge of the defects, is certainly not enough to show he was guilty of contributory negligence, for in all the cases we shall cite on this point, previous knowledge is shown.
    Also, we contend, that it is not enough that the facts are undisputed, for the inferences from the facts are a part of the evidence, and they must be such as admit of no rational inference, but that of negligence, or as otherwise stated, an inference concerning which reasonable men will not differ.
    In support of the rules we contend for on this point, we cite the following authorities, to wit:
    
      Railway Co. v. Crawford, Admr., 24 Ohio St., 631; Railway Co. v. Murphy, Admr., 50 Ohio St., 135; Railway Co. v. Ives, 144 U. S., 417; Railway Co. v. Prescott, 59 Fed. Rep., 239; Smith v. City of Spokane, 16 Wash., 403; Lyman v. Inhabitants of Amherst, 107 Mass., 339; Coffin v. Inhabitants of Palmer, 162 Mass., 192; Bullock v. Mayor et al., 99 N. Y., 654; Diveny v. City of Elmira, 51 N. Y., 506; Maultby v. City of Leavenworth, 28 Kan., 745; Malloy v. City of St. Paul, 54 Minn., 398; Ouverson v. City of Grafton, 5 N. D., 281; City of Highlands v. Raine, 23 Colo., 295; Hart v. Town of Red Cedar, 63 Wis., 634; Mayor, etc. v. Holmes, 39 Md., 243; Dwyer v. Salt Lake City, 19 Utah, 521; Loewer v. City of Sedalia, 77 Mo., 431; Allen v. Du Bois Borough, 181 Pa. St., 184; City of Sandwich v. Dolan, 141 Ill., 431; City of Flora v. Naney, 136 Ill., 45; Viner et al. v. Steamship Co., 50 N. Y., 23.
    And we find no decisions in conflict with this rule. It would be strange indeed if Ohio should be in conflict with this rule; but it is not. It concurs in such rule. Hogg v. Canal & Mfg. Co., 5 Ohio, 410; Bohaslav v. Oil Co., 2 Cleve. L. R., 337; Railway Co. v. Fitzpatrick, 31 Ohio St., 479; Railway Cp. v. Murphy, Admr., 50 Ohio St., 135; City of Toledo v. Center, 16 C. C., 308, affirmed, no report; 15 Am. & Eng. Ency. Law, 468 and 469; Village of Conneaut v. Naef, 54 Ohio St., 529.
    Plaintiff in error claims that it was Glaser’s duty to have gone around by another street, and not have used Keowee street or, that he should have driven on the part of Keowee street occupied and used with a double track by the street railway company. Neither of these propositions are tenable. The courts hold that such circumstances may be considered by a jury, but not on a motion for non-suit.
    The following authorities sustain us on this point, to-wit: Carstesen v. Town of Stratford et al., 67 Conn., 428; Village of Clayton v. Brooks, 150 Ill., 97; Town of Fowler v. Linquist, 138 Ind.,, 566; Wellman v. Borough of Susquehanna Depot, 167 Pa. St., 239; Chilton v. City of Carbondale, 160 Pa. St., 463; Cairncross v. Village of Pewaukee, 86 Wis., 181.
    The basis of the plaintiff in error’s claim is, that where the act of God, together with defendant’s negligence join in producing the injury, the act of God will be deemed the efficient cause, and the defendant will not be liable.
    The authorities cited by counsel for the city of Dayton do not sustain the position taken, and the universal weight of authority is to the contrary. The reason given by counsel for the rule contended for is, that “the wind could not have been foreseen by plaintiff in error.” This particular wind may not have been foreseen, but the city was bound by the general knowledge, that winds do blow, and are- liable to blow at any time, especially in March. In order to relieve a defendant from liability where the act of God joins such defendant in producing the injury, it must be shown that act of God was extraordinary. This is the distinction made by all the authorities. That, as to ordinary and usual acts of nature the defendant is bound to foresee them.
   Summers, J.

It is elementary law that a city is not an insurer against accidents to persons traveling upon its streets, but that respecting them it has fully discharged its duty to such persons when it maintains its streets in a reasonably safe condition for use in the usual mode by day and by night. However, in view of the many instances in which cities are held liable, it would not be surprising' if the taxpayer should prefer that the city be held to be an insurer, with liability subject to the usual conditions.

The right to use the streets, whether thoroughfares, extending out into the surrounding territory, or merely local or crossways, from one thoroughfare'to another, does not depend upon citizenship or residence in the city. The streets are for the use of the public. The duty to maintain them is governmental, and the liability of the city for damages for injuries resulting from negligence in the maintaining of .them, in" the absence of a statute imposing the liability, is questioned.

- That the streets are not maintained in a better condition is owing generally to a lack of funds and mulcting the city in damages for injuries occasioned by their condition does not tend to remove, but only to aggravate, the cause of it. In this state the law is as above stated, but frequently it is so misapplied that a municipality is subjected to a liability never contemplated.

It was never intended that a .city should be required to keep its streets as' smooth as the floor of a skating rink or in such condition that a traveler may safely use them without exercising’ his own senses, and yet not infrequently a city is held liable for an injury resulting from the slightest defect or obstruction. This is to make the city an insurer. The duty is to "make the streets, reasonably safe for travel in the ordinary modes, and the inquiry should be, not was there some defect or obstruction in the street, but, was the street, •in the condition it is proven to have been in, with the defect or obstruction, in a reasonably safe condition for travel in the ordinary modes at the time the accident happened, and was the accident the natural and probable result of the use of the street in that condition, and one that should have been foreseen by those charged with the duty of maintaining the street; and if there is evidence ■tending to show contributory negligence, when that is an issue, did The plaintiff exercise such care as a reasonable and prudent person would ordinarily, that is generally, exercise under the circumstances, and would the accident have happened if such care had been exercised.

The street on which the accident happened had been paved with asphalt, which was two and one-half inches thick upon a concrete base, and had been worn out and broken out in many places, and the wheels of vehicles as they would drop info these places wore them deeper, so that there were many holes in the street from one to four inches in depth, and some of them extending over three or four square feet of the surface. The street was much traveled, its condition was plainly apparent and was well known to the plaintiff. The accident happened on a windy day in March. ■The plaintiff was driving his two-year-old colt to a strange wagon. The horse of a groceryman was taken sick and the plaintiff was induced to hitch his colt to the groceryman’s wagon and to drive about the city so that the groceryman’s clerk might take orders. They ha-d gone but a short distance when one of the front wheels ran into one of the holes or depressions in the street, causing the injury, as already stated. It is not necessary to consider whether the hole is the proximate cause of the injury' or whether the wind was an intervening cause, for we are of the opinion that the street was in a reasonably safe condition and that the accident or any accident, was not the natural or probable result of' using the street, and such as should have been foreseen.

The street had been for a long time in this condition, it was much traveled daily and no other accident had resulted from its use. Without stirring outside of the state house grounds like holes may be found in the walks.

In Beltz v. City of Yonkers, 148 N. Y., 67, the plaintiff, while walking on .the sidewalk along one of the principal streets of the city, fell and broke her leg. The sidewalk was constructed of two courses of stone flagging four feet in width. At a joint, where two of the flags came together, pieces had been broken off and removed, leaving a depression in the center of the walk two and one-half inches deep, two feet long and about seven and one-half inches in width. O’Brien, J., in the opinion says: “Assuming that the defendant’s officers were men of reasonable prudence and judgment, could they, in the reasonable exercise of these qualities, have anticipated this accident or a similar one from the existence of this depression in the walk? They could undoubtedly have repaired it at very little expense, but the omission to do. so does not show or tend, to show that they ■were negligent unless the defect was of such a character that a reasonably prudent man should, anticipated some danger to travelers on the walk if not repaired. If the existence of such a defect is to be deemed evidence of negligence on the part of the city, then there is scarcely any street in any city that is reasonably safe within the rule, and when accidents occur the municipality must be treated, practically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfillment or a rule of liability so. unjust and severe. It imposes upon municipal corporations the duty ■ of guarding against such dangers as can' or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which, according to common experience, was not likely to happen, it is not chargeable with negligence.”

And in Grant v. Town of Enfield, 11 N. Y. App. Div., 358, where the injury resulted from a hole, in oné of the highways, which was basin-like in shape, several feet in length, and only three. or four inches deep, the court reversed for error in denying a motion to non-suit. There are other cases cited in these reports. In Morgan v. City of Lewiston, 91 Me., 566, the facts were that the plaintiff was-injured by stumbling at the junction of two sidewalks at the intersection of two streets. There was a difference of five or six inches in the grade of the two walks and the fall was • in the night-time. The court ruled as a matter of law that the sidewalks were in a reasonably safe condition.

The judgment of the circuit court is reversed and that the court of common pleas is affirmed.

Shauck, C. J., Price* Crew, Spear and Davis* JJ-, concur.  