
    Moore, Appellant, v. Geiger, Appellee.
    
      (No. 1040
    Decided March 30, 1966.)
    
      Mr. John L. Roof, for appellant.
    
      Messrs. Smith, Kerns & Hey dinger, for appellee.'
   CueRNsey, J.

This is an appeal on questions of law from a: judgment of the Common Pleas Court of Logan County enter-i ed for the defendant in a negligence action pursuant to a verdict directed at the close of the plaintiff’s evidence. Plaintiff having died following the perfection of this appeal, the action.; has been revived in the name of her personal representative.

It is undisputed in evidence that the defendant contractor,' while in the process of replacing an old section of public side-' .walk in.feent of.a restaurant located on the south side of the: principal street running in an easterly and we ¡through tlie business section of Lakeview, Phio, had, p p. m. on May 1,1962, poured and troweled new concrete^crata^ jpleting that work early the same day; that to hold the. fc ⅛ along the curb line he had placed a number of cement hi fend at each end of the new construction had placed, as a " cade a 2 x 4-inch board elevated above the level .of the sidev ' that the north end of the 2x4 barricade at the west end pfjjf construction rested on top of a vertical, cement block and%| South end rested on one of the steps leading into, a tavern; that] the 2x4 used for the westerly barricade had been previously, ¡ used in connection with the contractor’s business and no longer had the natural color of new lumber; that at a point east of that barricade the contractor had constructed a ramp over the new;, concrete leading from the street to the entrance of an adjoining restaurant, using new and naturally-colored lumber for such-purpose; that at about 2 p. ra. on that day the plaintiff , picked, up some shoes at a repair shop located on the same side of the,| street,, the entrance to which was approximately 40 feet-west jthe 2x4 barricade; that she then left the shoe shop, went“dov jfche steps onto the sidewalk,” “glanced into the shoe bagies-s the shoes,” “closed the bag,” and ‘‘started walking,downdf 'sidewalk to the east”; that she “walked a few steps,” “sa%<j construction [the ramp] in front of Pickering’s, leading ‘Pickering’s,” “took a few more steps and * * * tripped joverj ^something [the 2x4 barricade].,” “fell across it and lit on thaj cement,” injuring herself; that the plaintiff did not see thé! ¡2 x 4 barricade until after she fell; that later on she and&tSaJ town marshal were able to see same from the entrance |shoe repair shop; that it had stopped raining early that moira»j ling and was not raining at the time of plaintiff’s fall; that.; the fall a mark, apparently made by the 2 x 4, was obse a point twelve inches up plaintiff’s leg.; that the 2x 4 flagged/lighted, or otherwise marked; and that plaintiff^ about tiie middle of the sidewalk when she fell.

The height of the north end of the 2x4 puted, there being some testimony that the vertical blde& : .which the board jested, wag ‘ Mock resting upon the street, some that the vertical block was itself resting upon the. street, and some that the vertical block ¡was resting upon the sidewalk. Dependent upon which testi-many was believed, the bottom side, of the north end of the2x4 would have been either nine inches, sixteen inches, or seventeen inches above the level of the sidewalk. The height of the south, end of the two-by-four, barricade was also disputed, there being some testimony that it was resting upon the top step of the ta-:uem steps, and other testimony that it was resting upon the middle of the tavern steps. In the former event its bottom side, •would have been thirteen inches above sidewalk level, and in the latter event it would have been seven inches above sidewalk level. (

Defendant contractor testified that the 2 3D, 4 “woulchPfc have had concrete on it,** “it might have had? somestainondi,?** and that if you just walked along the sidewalk normally it would not “blend right in.w Mr. Brodnick, an employee ipf defendant! ¡who helped erect the barricade* testified? thatthei2ix 4 **yrasD%0 black that youicpuldn^t: see itjí and it had cement but nOt éement’ i we used,** “it was old cemen^&fi whitish colo^ that though the day started “dark, dingyi '* * * and -looked like rain*^ ,“aaround eightrthirtyit gotpretty nice,, and was“pretty mce*^ at two d^clock; and that thn southendof the 2ac 4 rested On the top tavem step. Mr. Mallory, another employee Of defendant, .testified? that the south endpfitheSfcx 4 restedpn- the topstep?p£ ithetavern; that ho didn ’tiknaw“how muchcement*eoncretepr discoloration was on tMsA/xHP^aud that ^xt-cpnldn^t havej i blendedwitb the concrete,*’ fon^xf it had been«us€di*li*i'^ inai^ concrete it would have been wMtish,** whereasA$iegncEete§i^ greenish tint until it sets up and bleaches.?* (

The town marshal testffied that the a piece of dumber that had been used at sometimepr anothe on concrete work because xtwas'discolored with concrete^; 1 ,“at the. timeof my observation [it was] On the middle step pfj the tavern and the end out in the street waspm the end of [one]J up-turued cetnent hlock^ resting On thestreet; that in Ms judg-j mei^it . was Mghti or nine inches above thesidewalk; that1 “it was slightly hazy day and concrete drying opt has uneven appearance and color and the lumber discolored being wood has uneven color, that is the only term I can think of, the color would blend — the color would correspond”; and that the two-by-four was grey in color.

Plaintiff testified that she didn’t see the 2x4 because “it was low and there was no flares and no lights”; that “it had been used with cement,” was “grey in color”; that “the 2x4 blended in with the cement”; that the north end of the 2x4 rested on a cement block which in turn rested on the street; that the only thing which she saw or which attracted (or distracted) her attention were the “planks or boards leading into the Pickering Eestaurant”; and that it looked like old cement on the 2x4 with the top “grey with cement” and the side “grey in color.”

Plaintiff’s assignments of error may be summarized that the trial court committed error prejudicial to plaintiff in directing a verdict in defendant’s favor and in overruling plaintiff’s motion for a new trial.

The duty of a trial court in a jury trial on a motion to direct a verdict is set forth in Hamden Lodge v. Ohio. Fuel Gas Co., 127 Ohio St. 469, as follows:

“3. Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential is-1 sue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that eoncln-, sion is adverse to such party, the judge should direct a verdict against him.
“4. Where from the evidence reasonable minds may-reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

Thus, if on the evidence here, so construed, reasonable minds could conclude only that the defendant was not action-ably negligent or that the plaintiff was eontributorily negligent the trial court’s judgment must stand. Conversely, if rear sonable minds could also conclude that the defendant was ae-tionably negligent and the plaintiff not contributorily negligent the judgment must be reversed.

As to defendant’s negligence, if any, it should first be observed that this is not the ordinary case of a municipality being sued for damages for injuries resulting from a defect in the sidewalk structure itself, but is the case of a contractor being sued for damages for injuries resulting from a barrier to public travel, which he erected on a public sidewalk. As stated in 40 Corpus Juris Secundum 288, Highways, Section 252b, which is applicable as well to sidewalks along highways:

“The primary duty rests on a highway contractor to exercise reasonable care for the safety of the general public while it is traveling over a road on which he is working, * * * and he may be held responsible for damage resulting from his negligence or malfeasance in connection with defects and obstructions in the highway, as in the case of his negligence in respect of barriers, railings, and other guards or danger signals * * * .”

Compare, Strong v. Pickering Hardware Co., 9 C. C. 249, 2 O. D. 460, 6 C. D. 212, and Cleveland Ry. Co. v. Ranft, Adrar., 12 Ohio App. 397, 400.

In 40 Corpus Juris Secundum 310, Highways, Section 262, it is also stated:

“Sufficiency of barrier, guard, or signal. The barriers, railings, guards, or signals should be sufficient reasonably to warn and protect travelers on the highway, in the exercise of reasonable care * * * .
“A barrier or guard railing should be so constructed that it may be readily seen at a safe distance by ordinary observation; * * *. It should be such a barrier or railing as an ordinary man would maintain to make the road reasonably safe for the reasonable use of the traveling public under the circumstances * # * ??

Although the law, as so stated, has been developed with application primarily to the determination of whether a barrier is sufficient to warn of the danger which it was erected to protect, a contractor has a similar duty to erect a barrier which, in and of itself, does not constitute an unreasonable danger to the general public using the highway or sidewalk.

The barrier here, if not sufficiently visible and of instifficient | height, would constitute a negligently created nuisance and trap, waiting for the unwarneti public to venture into it. On the other hand, if sufficiently visible or of sufficient height, injury was unlikely to result. Notwithstanding that plaintiff ad-imitted its visibility from a distance of forty feet, if one looked ¡for it, the evidence as to its visibility when much nearer and at ■a necessarily different sight-angle, and the evidence as to its height, was in such conflict that reasonable minds might conclude that the defendant was negligent in its erection and maintenance as well as they might have concluded that he was not. : Stated in another way, the conflicting evidence as to visibility and height, when construed most strongly in the plaintiff’s favor, and considered in the light of the undisputed facts, tends to prove the defendant to have been negligent in the manner in which he caused the barricade to be erected and maintained.

Reflecting on the plaintiff’s duties the Supreme Court has held in Grossnickle v. Village of Germantown, 3 Ohio St. 2d 96:

“2. A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward under all circumstances even where she has prior knowledge of a potential hazard.”

And, the Supreme Court held in the case of Highway Construction Co. v. Sorna, 122 Ohio St. 258:

“1. One using a sidewalk, cross walk, street or highway, which ordinary and reasonable care would inform him was dangerous, takes the risk of such injuries as may result to him by ¡'open and apparent defects, such as his observation ought to have ' detected and avoided. (Schaefler v. City of Sandusky, 33 Ohio St., 246, 31 Am. Rep., 533; The Village of Conneaut v. Naef, 54 Ohio St., 529, 44 N. E. 236, and City of Norwalk v. Tuttle, 73 Ohio St., 242, 76 N. E., 617, approved and followed.) ” (Emphasis added.)

It is apparent from the emphasized portions of the latter citation that much of this law had its birth in the law of assumption of risk of a known danger and reflects only indirectly on a pedestrian’s duty ^respecting unknown dangers. A traveler’s duty of vigilance is stated in 2‘Restatement offthe Law "of Torts 1248, Section 474 b:

“ * * * the plaintiff must not only exercise reasonable care to avoid dangers winch, are obvious or of which he has knowledge, but he must be alert to discover the actual condition of the roadway.
“ * * * if the plaintiff would have observed the dangerous condition in time to avoid it, had he been paying that attention, which, in view of the normal risks of travel, a traveler should have paid, his contributory negligence in failing to exercise such reasonable vigilance is a bar to his recovery. ’ ’

Moreover, as an Ohio municipality has a statutory duty to keep its public sidewalks open, in repair, and free from nuisance, a traveler on such sidewalks has the right to assume that this obligation has been observed until he is apprised to the contrary. Darst v. City of Columbus, 25 Ohio Law Abs. 397, 399.

In summary, a pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered and, if the sidewalk is located within a municipality, may assume, unless he has notice to the contrary, that the municipality has carried out its obligation to keep such sidewalk open, in repair, and free from nuisance. Nor, in exercising such care, is he required to look constantly downward under all circumstances to discover either latent or patent defects or dangers. However, if there are open and apparent defects which, in the exercise of such care, his observation ought to have detected, in using the sidewalk he assumes the risk of such injuries as may result to him by reason of such defects.

In determining the propriety of the directed verdict and1 construing the evidence as to disputed facts most strongly in favor of plaintiff we must conclude that the 2x4, visible at 40 feet when looked for, was not necessarily visible at any distance .when one did not look for it; that, when looked at close to the point of the incident causing injury, it was grey with cement, on top, grey in color on the side, and “blended” with the new concrete; that its bottom side was nine inches above the sid’e-walk on its north end and seven inches above the sidewalk at its south end; and that it was a hazy day. Considering this evidence, as so construed, together with the evidence as to undisputed facts, we cannot say that reasonable minds could come to hut the sole conclusion that the plaintiff was contributorily negligent in not seeing the 2x4 barricade which caused her injury.

It appearing that reasonable minds might reach different conclusions upon both the issue of negligence and the issue of contributory negligence, such issues were for the jury, and the Common Pleas Court committed errors prejudicial to the plaintiff, appellant herein, in directing a verdict for the defendant at the close of plaintiff’s evidence and in overruling plaintiff’s motion for a new trial, for which errors the judgment must be reversed and the cause remanded for a new trial.

Judgment reversed.!.

YouNgee, P. J., and MiddletgN, J., concur.  