
    Messe v. City of Massillon.
    (Decided October 18, 1935.)
    
      Mr. Harold A. Tetlow, for plaintiff in error.
    
      Mr. L. C. Wiggins, for defendant in error.
   Lemert, P. J.

Plaintiff in error herein, Albert H. Meese, was employed by The A. F. Wendling Company, general contractors engaged in the erection of a building for the Swanson Brothers, in the city of Massillon, Ohio. He was employed as a laborer and had been in the employ of the company a few days prior to the date of the accident herein complained of. The defendant in error, City of Massillon, had issued a permit on the 21st day of April, 1931, to Swanson Brothers for the erection of a certain building. Prior to the 21st day of April, 1931, plaintiff in error had been employed in and about the job in hauling lumber, piling lumber on the sidewalk, adjacent to Lincoln Way, during the excavation by the contractor on such job. A high board fence was constructed around the premises, enclosing the sidewalk to such an extent that it was necessary to erect in the street a temporary sidewalk for pedestrians.

On the 29th day of April, 1931, plaintiff in error Meese was ordered by his boss to go to the basement, or the place where the excavation had been made, and do some work there. This excavation was approximately twelve feet lower than the level of the street or sidewalk, and the excavation adjacent to Lincoln Way was not cribbed in any manner. Plaintiff in error went to the basement to do some digging, and while there the entire wall of dirt and the sidewalk on Lincoln Way caved in and completely covered plaintiff in error, causing him serious injuries.

Suit was filed in Common Pleas Court, the petition alleging that the city of Massillon had violated Section 3714 of the General Code, commonly known as the Nuisance Statute, which reads in part as follows:

“The council [for said city] shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

At the close of plaintiff’s testimony in the Common Pleas Court a motion was made by opposing counsel to direct a verdict. The motion was sustained and error is prosecuted therefrom to this court.

The record before us discloses the facts as herein-before narrated, and also shows that the cement part of the sidewalk, which was boarded in during the excavation, was not used, or subject to use, by the public at the time this injury to plaintiff in error occurred, but that the public was permitted to use only the board sidewalk constructed on Lincoln Way. The defendant in error, the city of Massillon, had nothing whatever to do in any way with the construction or excavation that was going on inside the board fence enclosure, where plaintiff in error was employed. The cement portion of said sidewalk was not then being used by the public and was not under the control of the city of Massillon.

The evidence in the record does not show any defect in said cement sidewalk, nor does it show any act whatever of the defendant in error which contributed in any way to the plaintiff in error’s injuries. There is nothing in the record to show that the defendant in error city of Massillon knew of the dangerous condition, or that it did any act in any way that contributed to plaintiff in error’s injuries. The record discloses that the plaintiff in error was employed by the contractors to assist in the excavation and was not in the use of any street or thoroughfare at the time of his being injured. That being so there is clearly no liability on the part of the city of Massillon, and therefore the finding and judgment of the court below will be and the same is hereby affirmed.

Judgment affirmed.

Montgomery and Sherick, JJ., concur.  