
    Felt, a Minor, v. City of Toledo.
    (Decided March 20, 1933.)
    
      
      Mr. 8. 8. Burtsfield, for plaintiff in error.
    
      Mr. Irving J. O’Connor, director of law, and Mr. Gerald P. Openlander, for defendant in error.
   Richards, P. J.

Plaintiff, Mary Felt, is a minor about seven years of age, and was injured by falling from a metal slide provided for the use of children on a public playground operated by the city of Toledo. The trial resulted in a directed verdict for the city, and this proceeding is brought to secure a reversal of the judgment entered on that verdict.

The playground is located at the northwesterly corner of Cherry and Bancroft streets in the city of Toledo, and is the same premises that were used for many years by the Toledo Hospital. After the hospital buildings were torn down, the city, early in 1931, made the premises suitable for a public playground, and they have been so used since that date. The slide from which the plaintiff fell consists of a metal structure about 20 feet long, 12 feet high at one end, and 2 feet high at the other. Steps had been erected, so that children could climb to the upper end of the slide, which was a trough placed at an angle of about 45 degrees. The bottom of the trough consisted of sheet iron and this was made of two pieces, which were intended to join transversely some 10 or 12 feet from the bottom of the slide, but which were in fact separated, there being at the place of juncture a crack or joint. This open space is described by witnesses, some placing the distance between the two sheets ás one-eighth of an inch and others placing it as great as one-half an inch.

On September 2,1931, plaintiff started to slide down this structure. When she reached the crack, or joint, the heels of her shoes caught and she was thrown out onto the ground, breaking her right arm. The injury was a compound fracture, the bones of the arm being thrust through the flesh and into the ground, ultimately resulting in the loss of her right arm, at or just above the elbow.

The maintenance of the slide in the condition it was in is charged to have constituted negligence on the part of the city. The structure had been in use for several years on a playground operated by the city, which offered evidence tending to show that the slide was in the same condition when purchased, and that many such slides were in general use. The evidence tends to show that when constructed a sheet of rubber was inserted at this joint, designed to prevent water passing through, but that in the course of time the rubber had so deteriorated that it failed to fulfill the purpose intended. It is manifest that if the upper edge of the lower sheet should become slightly raised, the slide would be extremely dangerous, and there is some testimony tending to show that for a time prior to and after the injury to plaintiff it was in that condition, and that there was a bump at that place. Boys of 11 or 12 years of age, who were in the habit of using the slide, testified that they had learned that their heels would get caught at this crack or joint, and to avoid if they were accustomed to raise their feet as they passed the place. The city employed a man to repair various kinds of equipment on the playgrounds, but he had discovered nothing wrong with this slide. The city contended that the playground was not used as such in the summer of 1931, after the 7th or 8th of August, and that no supervisor was in attendance after that date, but no fence or barricade was constructed around the playground, and it could hardly be expected that a seven year old child would take notice that playtime for the summer ended on August 8th. During the trial the judge made the following statement: “I understand it is conceded that this crack as it now exists is the same crack that has always been there.” And a little later he put the statement in the following form: “This crack is the same crack that it always has been.”

Counsel for plaintiff assented to the statement.

In view of some evidence tending to show that the upper edge of the lower sheet “was-up about half an inch higher than this part coming down”, and that there was a bump there, we think this statement must be taken to mean only that the crack was the same crack that had always been there.

It would seem that it would have been an easy matter to have constructed the sheet iron bottom so that the lower end of the upper sheet would have overlapped the lower sheet, similar to shingles on a roof, and thus have rendered the equipment entirely safe.

The structure was owned by and was under the exclusive control of the city, and had been used by it for a long period of time, and we are of opinion that the evidence on the subject of notice was sufficient to carry the case to the jury, as to whether the city knew, or, in the exercise of ordinary care, should have known of the existence of the defect; either actual or constructive notice being sufficient.

Counsel for plaintiff relies on the claim that the doctrine of res ipsa loquitur applies, but since the decision of the Supreme Court, in City of Cleveland v. Pine, 123 Ohio St., 578, 176 N. E., 229, 74 A. L. R., 1224, there can be no foundation for such claim.

On the trial counsel engaged in some, controversy as to whether the petition stated more than one cause of action. Our examination of the pleading convinces us that it states only one cause of action, with additional averments of facts which it is claimed aggravated the damages.

Judgment reversed and cause remanded for new trial.

Williams and Lloyd, JJ., concur.  