
    City of Hamilton v. Haferkamp.
    (Decided November 1, 1935.)
    
      Messrs. Millihin, Shotts & Beister, for plaintiff in error.
    
      Mr. Barry J. Koehler, Jr., for defendant in error.
   Ross, P. J.

This case comes into this court on error from the Court of Common Pleas of Butler county, wherein the plaintiff, Tena Haferkamp, recovered judgment.

The parties will he referred to here as they appeared in the trial court.

The plaintiff stepped into a hole in one of the streets of the defendant city of Hamilton, at a point upon the cross-walk in the line of an extension of the sidewalk.

She was unable to show actual notice to the city of the defect prior to the date of her accident, or' direct evidence that the hole had existed for such a length of time that the city should have had constructive notice thereof.

However, a photograph was introduced in evidence which shows clearly the location and nature of the defect in the street. While some objection was made to the introduction of this photograph, it appears to practically portray the actual condition existing at the time of the accident. The objections to it were purely technical. There can be no question that the hole was substantially in the same condition at the time of the taking of the photograph as it was at the time when the injury occurred.

Expert opinion was introduced to show that such a hole could not have developed instantly, but, on the contrary, must have gradually grown larger and deeper over quite a period of time, sufficient, it appears, to have given the city constructive notice of the defect.

An examination of the photograph also confirms such conclusions. There was, therefore, some evidence of notice to go to the jury, and the court properly refused to instruct a verdict for defendant. Special and general charges protected the defendant as to notice.

The court refused the following special charge:

“The plaintiff cannot hold the city liable for injuries received through an alleged dangerous condition of the cross-walk if such alleged dangerous condition was obvious and apparent and if there was nothing to prevent her from seeing such alleged dangerous condition, or which would excuse her failure to observe it.”

This charge, in effect, states that if the plaintiff was negligent she cannot recover. This is not the law, as has been repeatedly pointed but before. The correct rule is that if the jury finds certain facts constituted negligence on the part of plaintiff, and that such negligence caused or contributed to the injuries complained of, the plaintiff cannot recover. The special charge under consideration completely eliminates any consideration of the causal connection between any neglect upon the part of the plaintiff and the injuries received.

This court said in considering the same point as to negligence of the defendant in the case of Flamm v. Coney Island Co., 49 Ohio App., 122, at page 125, 195 N. E., 401:

“The question presented is, was there any evidence directly addressed to proof of the causal connection between the negligence claimed to exist and the injuries suffered by plaintiff in error? As we have recently said the mere co-existence of negligence and injury is not sufficient to establish a causal connection between them. Wartik v. Miller, Admx., 48 Ohio App., 494, 194 N. E., 433; 29 Ohio Jurisprudence, 654; Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634.”

The same rule applies to negligence of plaintiff. The charge is in addition argumentative and misleading.

We find no error prejudicial to the plaintiff in error, and we therefore affirm the judgment.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  