
    City of Circleville v. Sohn.
    
      Municipal corporation — Nature of duty as to public ways, etc. — Liability for defect in street— When alleged defect conforms to plans of municipal authorities.
    
    1. The duty enjoined by statute on municipal corporations to keep their public ways open, in repair, and free from nuisance, is ministerial and mandatory, and requires the removal from such ways of all dangerous defects and obstructions, from whatever cause arising, when brought to the notice of the corporation.
    2. The corporation is liable for injuries caused by a d angerous defect or obstruction in a street or sidewalk under its control, after reasonable notice of its unsafe condition, though it arose from the construction or alteration of the street or sidewalk in conformity with a plan adopted by the municipal authorities.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Pickaway county.
    The action helow was brought in the court of common pleas of Pickaway county, by Ella M. Sohn against the City of Circleville, to recover damages for an injury alleged to have resulted from a defective sidewalk in the city. The petition alleges:
    “That the defendant, the City of Circleville, Ohio, is a municipal corporation of the fourth grade of the second class, duly organized under the laws of the state of Ohio. That there is a certain street in said city called Court street, with sidewalks on both sides of the same, which have been constructed and maintained, upon grades established by said defendant for the use of public travel by pedestrians having occasion to travel thereon; that the said street is, and was at the date hereinafter mentioned, one of the most public streets in the said city, and that the said sidewalk, at the points hereinafter named, was a greatly frequented place and much traveled by the general public, being within two squares of the business center of said city; that on the west side of said street, between Mound and Union streets, there is an alley called South Area alley, extending from Canal street and intersecting’ said Court street at a point between the lots of G. F. Wittich and Dorothea Turney, that from a point near St. Philip’s Episcopal Church to the said Court street, said alley descends and slopes rapidly, and where the same crosses said sidewalk it has a slope of at least two feet in sixteen feet, thereby making said slope dangerous for persons traveling thereon, in times when the same is covered with ice and snow; that said sidewalk at said point, crossing said alley, is constructed in a dangerous and defective manner, by reason of said unusual and abrupt slope, and having rough and uneven stones thereon, and between which there are large fissures; that the same is so constructed at said point as to have a depression or gutter in the middle, for the purpose of permitting and allowing drainage on and through said alley, from said Episcopal church, and from lots adjoining on said alley, and over said sidewalk, and emptying into a gutter running along the said Court street, between the said sidewalk and the street proper; that in times of rainfall there is a large flow of water over and through said alley at said point; and in times of freezing, the said sidewalk, at said point, becomes covered with ice from said drainage, and also from the drainage from lots adjoining on both sides of said alley, thereby making said sidewalk from all said causes aforesaid unusally dangerous to persons walking thereon;, that said alley and said sidewalk have remained in said condition, as to the construction thereof, for a great many years, to-wit: for at least ten years, with the full knowledge of the defendant of all the conditions aforesaid; that accidents have frequently happened at said point to persons walking on said sidewalk, by said persons slipping and falling, when the same was covered with ice and snow; that the said G. F. Wittich and the said Dorothea Turney have, with the knowledge and consent of said defendant, for a ■long time prior to the injury hereinafter alleged, to-wit: for at least ten years prior thereto, and at the time said injury occurred, used said alley way as a means of drainage for their slops and surplus water, coming from their said premises, and the same has been allowed and permitted by the defendant to flow over and across said sidewalk, and into said gutter, continuously, for the said period of time aforesaid; that on or about the sixteenth day of March, A. D. 1895, and for more than a month next preceding, said defendant, with full knowledge of all the facts heretofore stated, had carelessly and negligently suffered ice, frozen snow and sleet to accumulate on said sidewalk, at said point, and the same was, at said date, dangerous to persons passing along the same, by reason of its slippery condition, and the defective condition of said sidewalk, as hereinbefore stated;' that at said date aforesaid, about eight o’clock in the evening, this plaintiff was passing along the sidewalk, in the usual way, using all due care, and ignorant of its defective and dangerous and slippery condition, and while so walking she fell, and broke, fractured and sprained her right limb near the ankle joint, and ruptured the ligaments, and otherwise injured her said limb. That by reason of the injury aforesaid, she was laid up and confined to her bed, for the period of five days, and has suffered great bodily pain and mental anguish, and was prevented for the last three months from attending to her business, and incurred about $125 expense for medical attendance and nursing, in attempting to be cured of said injuries ; and this plaintiff further avers that she is still lame and crippled from said injuries, and is only able to attend to her business by the use of her crutches; that the said injuries still exist, and that she will, as she verily believes, be and remain permanently lame, crippled and disabled from said injuries.”
    By an amendment the following allegations were added to the petition:
    “That in consequence of the defective condition of the said alley, where the same crossed the said sidewalk, as it was at the time of her said injury, as described in her petition, and of the said unusual, abrupt and dangerous slope thereof at said point, and of the accumulation and flow of the water over and through said alley and across said sidewalk, from the sources and causes as averred and described in her petition, and the freezing of the said ice and snow thereon, in the defective condition of the said sidewalk at said point, at the time qf said injury so caused and brought about by the negligence of said defendant, and by the negligence of the said defendant in permitting the same to be and remain in said condition, the said plaintiff became and was injured, as described in her petition. ”
    The defendant answered, denying, sustantially, the alleged defective condition of the sidewalk, and all negligence on its part, and charging ihe plaintiff with contributory neglig-ence.
    
      The plaintiff controverted the allegations of contributory negligence, and upon a trial of the issues thus joined the defendant prevailed. The judgment in its favor was reversed by the circuit court, for error in the charge and in refusing to give instructions requested by the plaintiff. The charges so held erroneous are as follows:
    “If you find from the evidence that the plaintiff’s fall was caused by the plan or design of the sidewalk, then the defendant cannot be held liable.”
    “If you find from the evidence that the plaintiff’s fall was caused by the plan or design of the sidewalk, and not by any failure to repair the same, or a defect in its construction after the plan was adopted, then the defendant cannot be held liable.”
    “The city had a right to open out the alley, and to construct said sidewalk, and the alley crossing which intersects it at that point, and if you find from the testimony that the alley crossing- complained of was constructed in a reasonably safe manner, according to a plan enacted by the city council of the city of Circleville, and that it has remained substantially 'in that condition since, and was so at the time of the injury complained of took place, and that the defect, if any, was in the plan and not in its construction, or the want of repair on the part of the city, but that the injury complaind of occurred and was caused by the adoption of a plan which I have stated before was reasonably carried out and substantially built according to the plan, then and in that case the plaintiff cannot recover.”
    The instructions requested and refused are as follows:
    “If you find from the evidence that the accumulation of ice on, the pavement where the same crossed over South Boundary Alley, combined with the defective condition of said alley at said point, and that the municipal authorities knew or should have known of its defective condition, then and in such case I charge you that the city is liable, unless you find that the plaintiff was guilty of contributory negligence in going upon said pavement at this point.”
    “The duties of the municipal authorities of this state to keep the streets, alleys and sidewalks of the municipality for which they act, in repair, are ministerial, and not legislative, and although they may exercise their discretion as to whether such improvements shall be made, yet, when they do decide to make them, the law requires that they shall be made in a reasonably safe condition for public travel, and in their acts in constructing the streets, alleys and sidewalks in such a manned as to be reasonably safe for public travel, the municipality for which they act, may be held liable.”
    “The law of this state imposes upon the municipal authorities the duty of making and keeping the sidewalks of the municipality in reasonably safe condition for persons walking along and over them, and in the performance of this duty the authorities act in a ministerial capacity, and for their negligence in the performance of their duty, the municipality for which they act may be held liable.”
    “The same duty was imposed upon the defendant through its municipal authorities to make and keep in a reasonably safe condition the sidewalk where it crossed over South Boundary Alley, as the other parts of said pavement.”
    The case is brought here on error by the city.
    
      
      Chris. A. Weldon, City Solicitor, for plaintiff: in error.
    The place on which the plaintiff fell was a gentle slope, having a fall of about six inches in 8J feet in one direction and eight inches in 15 feet in another. On this slope new ice had formed, the same existing all over the city as disclosed by the testimony of Judge Courtright, where he testifies that on the date on which the accident occurred, “we had a sleet and that the streets and sidewalks were a glare of ice. ’ ’
    The facts in this case are similar to the facts in the case of Taylor v. City of Yonkers, 59 American Rep., p.492; 101 N. Y., 661.
    Precedents for these decisions are to be found in the reported cases of Maine and Massachusetts, which hold that if besides the defects in the way, there is also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. Moore v. Abbott, 32 Me., 46; Moulton v. Sanford, 51 Me., 127; Marble v. Worcester, 4 Grays, 395; Chicago v. Bixley, 84 Ill., 82; Detroit v. Blakely, 21 Mich., 84; Village of Groveport v. Julia Bradfield, 2 O. C. C. Rep., 145; 1 Cir. Dec., 411; Urquhart v. City of Ogdensburg, decided by the N. Y. Court of Appeals, January, 1883; Lansing v. Toolan, 37 Mich., 152; Johnson v. District of Columbia, 118 U. S., 19; Child v. Boston, 4 Allen, 51; Hubbell v. Yonkers, 104 N. Y., 271; Springfield v. Spence, 39 Ohio St., 669.
    .We think the testimony clearly proves that the cause of the accident was the snow and ice which was common to all parts of the city on that night and this being the proximate cause, no liability attaches to the city for negligence in not removing it. The Village of Conneaut v. Naef, 54 Ohio St., 529; Chase v. Cleveland, 44 Ohio St., 505 and Shaefler v. Sandusky, 33 Ohio St., 246; Village v. Kallagher, 52 Ohio St., 183; 19 Ohio St., 22; Robinson v. City of Cedar Rapids, 1 Vol. American Neg. Rep., 43.
    ■ Clarence Curtain, for plaintiff in error.
    The plaintiff in framing her cause of action evidently undertook to so frame it that it would not fall within the rule laid down by this court in the case of Chase v. City of Cleveland, 44 Ohio St., 505; In order to do so she was compelled to predicate the acts of negligence complained of as being in the plan or design upon which the sidewalk, where she fell, was constructed. Her petition in effect charges the city with having been negligent in adopting the particular grade of the sidewalk that it did at that point where she fell. She has no cause of action unless this averment m her petition states one. Carr v. Northern Liberties, 35 Pa. St., 324; Springfield v. Spence, 39 Ohio St., 669; Railroad Co. v. Dayton, 23 Ohio St., 510.
    ' It would appear that so far as the plan and construction of sidewalks and alleys are concerned, that the power conferred upon the council is discretionary, but that when once constructed, a duty is imposed upon the council to keep the same open and in repair and free from nuisance. Hines v. Loeckport, 50 N. Y.,. 238; Mills v. Brooklyn, 32 N. Y., 489; 36 N. Y., 54; 1 Den., 595; 9 N. Y., 109; 45 N. Y., 129; 46 N. Y., 194; 37 N. Y., 568; Lansing v. Toolan, 37 Mich., 152; Toolgn v. Lansing, 38 Mich., 315; McKeller v. Detroit, 37 Mich., 158 (58 Am. R., 358). The cases are fully collected in 2 Eng. and Am. Oorp. Cases, 565, 571, 572, 579, 588; 4 Eng. and Am. Corp. Cases, 626, 627. They agree that there is no responsibility unless there has been such an accumulation as will amount to an obstruction of the way which is dangerous, and they also agree that a city is not liable for the manner in which its walks and other structures and ways are planned. Detroit v. Beckman, 34 Mich., 125 (22 Am. R., 507); Urquhart v. The City of Ogdensburg, 91 N. Y., 67; Mr. Dillon, Municipal Corporations, section 1051.
    The plaintiff alleged in her petition that there was a defective condition of the sidewalk or alley •crossing. There was no evidence offered by her to show that there was any such defect whatever, unless the court should consider the grade or slope which has been testified to as a defect. Bretsh v. The City of Toledo, 33 Bul., 1 Dec., 96.
    It is apparent, therefore, that if the defendant in error failed to establish any direct and proximate connection between her injury and a defect in the sidewalk or crossing,, if such defect existed, that she could not have been prejudiced by the matters which we have been considering.
    Mr. Rowe was a surveyor, and, as the evidence shows, an expert in the establishing of grades for street and alley crossings, and his testimony shows that the plan of the alley crossing complained of was a reasonable and proper plan to adopt and maintain, taking into consideration all of the purposes for which the same was to be and is used. If the special charge had been properly con-
    structed it would not have availed the defendant in error unless the evidence showed that her injury was caused by the defect and not by the ice. 105 N. Y., 202; 54 Am., 492; 16 Eng., 431; Sherman and Redfield on Neg., section 26.,
    
      This case falls directly within the rule announced in the case of Chase v. The City of Cleveland, 44 Ohio St., 505; Villager. Kallagher, 52 Ohio St., 183; Mauch Chunk v. Klyne, 100 Penn. St., 119.
    We claim that the defendant in error was guilty of such contributory negligence, as shown by the evidence, as to preclude her from recovering. Her testimony, in substance, was that she had, as a usual thing, been passing along that side of the street and over that crossing once a day for about four years. We submit that in view of that fact that if there had been such a defect in the crossing as is claimed, one that was apparent to many others who testified in her behalf, that it must have been apparent to her; that is, if it be assumed that the grade or slope of the walk which was testified to by her witnesses is a defect. Even if it be claimed that it was only dangerous when covered with snow and ice, and its dangerous condition was open, apparent, and obvious to others, it must have been so as to her, and it was her duty to have avoided the crossing. Shaefler v. The City of Sandusky, 33 Ohio St., 246; Village of Conneaut v. Louis Naef, 54 Ohio St., 529; Hartman v. The City of Muscatine, 30 N. W. Rep., 859.
    
      Abernethy <& Folsom and Schleyer da Qerha/rt, for defendant in error.
    The several instructions given, and excepted to by the plaintiff, as well as the instructions asked by plaintiff and refused by the court, make the cleaneut question whether a municipal corporation can be held liable under the law of this state, for negligence, if the negligence consists in the plan or design adopted for the particular improvement which caused the injury, either in whole or in part, however defective the plan may be, or however dangerous the improvement, if constructed according to the plan or design. The gravamen of the plaintiff’s complaint was the unusual and dangerous slope of this sidewalk, and the manner in which it was constructed, where the plaintiff received her injury; and whether this defective condition was caused in its original construction according to some plan or established grade, or from subsequent failure of the city to keep it in proper repair, we maintain that in either ease the city was guilty of negligence.
    From the case of Rhodes v. Cleveland, 10 Ohio, 159, to Zanesville v. Fannan, 53 Ohio St., 605, the current of judicial decisions has been in the direction of holding municipal corporations liable for injuries resulting from their neglect in the performance of the duties imposed upon them by law. Mc Combs v. Akron, 15 Ohio, 475; Akron v. Mc Comb, 18 Ohio, 229; Dayton v. Pease, 4 Ohio St., 80; Crawford v. Delaware, 7 Ohio St., 460; Western College v. Cleveland, 12 Ohio St., 375; Cincinnati v. Penny, 21 Ohio St., 499; Youngstown v. Moore, 30 Ohio St., 133; Keating v. Cincinnati, 38 Ohio St., 141; Toledo v. Cone 41 Ohio St., 149; Cohen v. Cleveland, 43 Ohio St., 190; Johns v. Cincinnati, 45 Ohio St., 279; R. R. Co. v. Defiance, 52 Ohio St., 9; Cardington v. Fredericks, 46 Ohio St., 442; Zanesville v. Fannan, 53 Ohio St., 605.
    There is a line of decisions in which the municipal authority is recognized as in its nature legislative, and governmental, and a clear distinction is pointed out between these cases and those which are purely ministerial in their character.
    Such are the cases of Western College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 625.
    The “care, supervision and control” of all public highways, etc., section 2640 is vested exclusively in the council. Their duties to the public and to each individual member thereof, commence as soon as they have once resolved to make the improvement, and have started upon its construction. No dividing line of reponsibility is drawn between the character or method of their action in devising the plan or design of the improvement, and in the -execution of the plan or design. The maxim respondeat superior applies, and from start to finish it is charged with the duty of exercising reasonable care and skill in the discharge of its duties to the public. It must make its streets and sidewalks safe, and it must keep them safe for public travel. This is the polar star of its duties to the public.
    If the rule of exemption applied by the court’s charge in this case, were to prevail, we submit that it would strike down the principle of law which the Supreme Court, for more than a half a century, has held to be the policy of this state, with regard to municipal corporations.
    The corporation resolves to make or repair some needed improvements.
    It makes no difference how defective the plan, how unskillful! y or negligently it was prepared, no matter how negligent the council was in failing to examine the plan itself, or in ascertaining whether the construction if made according to the plan would be safe or not; “it is our plan, we adopted it, and we acted judicially, we were judges when we did so, and we laugh at your injuries.”
    And so long as the sidewalk or street, as the case may be, does not actually become out of repair, and thereby show negligence, the corporation is absolutely safe.
    The overwhelming weight of authority in other states sustained the principle that municipal corporations are liable for injuries to person or property, where such injury arises from negligence on the part of the corporation in maintaining and keeping its streets, avenues, sidewalks, alleys, public grounds and bridges within the corporation, in a reasonably safe condition-for public travel. Blyhl v. Waterville, 57 Minn., 115, 47 Am. St. Rep., 596; Sutton v. Snohomish, 11 Wash., 24; 48 Am. St. Rep., 847; Russell v. Town of Monroe, 116 N. C., 720; 47 Am. St. Rep., 823; Gould v. Topeka, 4 Pacific Reports, 822; City of North Vernon v. Voegler, 103 Ind., 314; Furguson v. Davis, 57 Ia., 601; Powers v. Council Bluffs, 50 Ia., 197; Wilson v. Atlanta, 60 Ga., 473; City of Chicago v. Gallagher, 44 Ill., 295; Prideaux v. Mineral Point, 43 Wis., 313; City of Indianapolis v. Huffer, 30 Ind., 233; City of Evansville v. Decker, 84 Ind., 325; 43 Am. Rep., 86; Weis v. Madison, 75 Ind., 241; 39 Am. Rep., 135; Rice v. Evansville, 108 Ind., 7; 58 Am. Rep., 22 ; City of Ft. Wayne v. Combs, 107 Ind., 75; Weightman v. Washington, 1 Black, 39; Seifert v. Brooklyn, 101 N. Y., 106; Hardy v. Brooklyn, 90 N. Y., 435; Van Pelt v. City of Davenport, 42 Ia., 308; 2 Dillon, section 1016 et seq; Gould v. Topeka, 32 Kan., 485; Jones on Negligence of Municipal Corporations, Chap. 4; Denver v. Dunsmore, 7 Col., 328; Shearman & Redfield on Negligence, 4th edition, section 289 ; 2 Dillon on Municipal Corporations, 4th edition, section 1017 ; Elliott on Roads and Streets, 446; Jones on Negligence of Municipal Corporations, section 92, and note,also, section 141 ; Cooley on Torts, 2d edition, 746; 
      Barnes v. District of Columbia, 91 U. S., 540; District of Columbia v. Woodbury, 136 U. S., 450; Beach on Public Corporations, vol. 1, p. 772.
    It will be seen that there is a great deal of difference between the states of Michigan and Ohio, in reference to the law of liability for failure to keep streets and sidewalks in repair. Detroit v. Osborne, 135 U. S., 492.
    If the court will take the trouble to turn to page 551, of the Barnes v. District of Columbia case, 91 U. S., it will find among the long list of authorities, three Ohio cases, to wit: Western College v. Cleveland, 12 Ohio St., 377; Mc Comb v. Akron, 15 Ohio Rep., 476; Rhodes v. Cleveland, 10 Ohio Rep., 159.
    Judge Cooley delivered a dissenting, opinion, in Detroit v. Blackeby, 21 Mich., 84, and if the judge can be relied upon, evidently the Michigan doctrine was odious to him.
    From the foregoing it will be seen that the United States Supreme Court, as well as Judge Cooley, repudiates the Michigan doctrine.
    Our own Supreme Court have approved the doctrine laid down in Barnes v. District of Columbia; Spence v. Springfield, 39 Ohio St., 665; Johnson v. District of Columbia, 118 U. S., 19; Johns v. City of Cincinnati, 45 Ohio St., 278; Cleveland v. King, 132 U. S., 295; Cardington v. Fredericks, 46 Ohio St., 442.
    We desire to call the court’s attention to the distinctive character of municipal corporations, as made by text writers and by the Supremé Court of this state; we deem it necessary for the reason that both counsel for plaintiff in error have indiscriminately used sewer doctrine for street doctrine, and almost every case cited by them in their briefs were sewer cases.
    
      As to the distinctive characters of municipal corporations: Cincinnati v. Cameron, 33 Ohio St., 336; Dillon on Municipal Corporations, Vol. II, section 1023 and 1046; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St., 110; Harris on Damages by Corporations, vol. 1, p. 165; Crawfordsville v. Bond, 96 Ind., 236; Evansville v. Decker, 84 lnd., 325; Ferguson v. Davis Co., 57 Iowa, 601; Indianapolis v. Huffer, 30 Ind., 235; Van Pelt v. Davenport, 42 Iowa, 308; Weis v. Madison, 75 Ind., 241; Powers v. Council Bluffs, 50 Iowa, 197; Cummins v. Seymour, 79 Ind., 491; Indianapolis v. Tate, 39 Ind., 282; Indianapolis v. Sawyer, 38 Ind., 348 ; Indianapolis v. Huffer, 30 Ind., 235 ; Detroit v. Beckman, 34 Mich., 125; Thurston v. St. Joseph, 51 Mo., 510; Hooker v. New Haven Co., 14 Conn., 146; Ashley v. Port Huron, 35 Mich., 296; Siefert v. Brooklyn, 2 Cent. Rep., 135; 101 N. J., 136; Book 17, L. C. P. Co., 52; Nebraska City v. Campbell, 2 Black, 590; Book 17, L. C. P. Co., 271; Circleville v. Neuding, 41 Ohio St., 465; Drains and Sewers, in 6 Am. & Eng. Ency. of Law, 26.
    The effort of counsel apparently, is to show that the plaintiff below slipped on a smooth surface caused by the ice, and that this was the proximate cause of her injury. Our answer is, in the first place the evidence shows that there was no smooth surface across this alley way. It was rough, ragged and uneven, as well as slippery, as the testimony of twenty witnesses will disclose if the court will take the time to read the testimony. And secondly, her own testimony discloses the fact that she was below the flagging, where the cobble stones were placed, and slipped and fell on the cobble stones. And they were a part of this pavement.'
    
      And yet, in the face of this testimony, counsel insist that she knew the sidewalk at this point was dangerous and that she voluntarily walked into the danger, and that this case is like the one reported in 54 Ohio St., 529.
    Her testimony shows that the first intimation she had of its dangerous condition, was when she stepped into the alley way and began to slip, and her first impulse then was, to try to g’et out into the street, but it was too late.
    There were also other alley crossings which she passed over on her way down, and she did not slip and fall, because they were safe. It was because the defective condition of the sidewalk at this point, having ice on it, rendered it unsafe.
    This testimony was competent, and was admitted. Brewing Company v. Bauer, 50 Ohio St., 550; Ashtabula v. Bartram, 3 C. C., 640 ; 2 Circ. Dec., 372 ; R. R. Co. v. Kelly, 6 C. C., 155, 3 Circ. Dec., 393.
    It is competent to permit one who is giving testimony as to the condition of a sidewalk to testify that he had fallen himself. It tends to show how he came to know the condition of the walk. Pomprey v. Saratoga Springs, 104 N. Y., 459.
    The question whether negligence of a municipal corporation is the proximate cause of the injury, is for the jury to decide, if the facts are in dispute, or if the inferences from the facts are not clear and indisputable. Jones on Neg. Munic. Corp., section 24; R. R. Co. v. Kellog, 94 U. S., 469; Bowes v. Boston, 29 N. E. Rep., 633; Bunting v. Hogsett, 23 Am. St., Rep., 192.
    Misdirection on a controlling question is not cured by the weight of evidence. Ins. Co. v. Sherlock, 25 Ohio St., 50. And prejudice is presumed from an erroneous charge. R. R. Co. v. 
      Stallman, 22 Ohio St., 1. Or, if the charge is calculated to confuse or mislead the jury as to the law of the case, there is error for which the judgment may be reversed. Ins. Co. v. Ins. Co., 5 Ohio St., 450; Brick Co. v. Pond, 38 Do., 75; White v. Thomas, 12 Do., 312.
    If the question depends on a variety of circumstances from which different minds would draw different conclusions, it must be submitted to the jury. R. R. Co. v. Picksley, 24 Ohio St., 654; Pray v. R. R. Co., 48 Am. St. Rep., 717.
    If different minds might differ as to the inferences to be drawn from the evidence, as to contributory negligence, the jury must decide, for the inferences are not legal but logical. R. R. Co. v. Murphy, 50 Ohio St., 135; Kelly v. Howell, 41 Ohio St., 438.
    In the case at bar, the plaintiff’s cause of action is predicated in part upon the defective condition of the sidewalk, not only as to the slope, but also as to its being rough and uneven, and containing fissures or openings between the cobble stones, which presents a very different case from a smooth surface for ice to accumulate on. It was its structural defects which caused it to become dangerous when covered with ice and snow. Shaeffer v. Sandusky, 33 Ohio St., 246; Village v. Kallagher, 52 Ohio St., 183; Village v. Naef, 54 Ohio St., 529.
    Where a plaintiff’s injury was caused partly by a fall on the ice with which the road was covered,' and partly by a defect in the road itself, the city was liable for its negligence in not repairing the defect, which was the cause of the injury, even though the ice as a condition contributed to it. Tiedeman on Munic. Corp., section 351; Wharton on Negligence, section 86; Shearman & Redfield on Negligence, section 346.
    Where two causes combine to produce injuries, defendant is not relieved from liability because it is responsible for one only of such causes. Board of Com'rs of Boone County v. Muchtler (Ind.), 36 N. E. Rep., 534; Union St. Railway et al v. Stone (Kans.), 37 Pac. Rep., 1012; Onverson v. City of Grafton, (N. D.), 65 N. W., 676, Ring v. Cohoes, 77 N. Y., 83; Lowery v. Railway Co., 99 N. Y., 158 (I. N. E., 608).
    Suppose the sidewalk where the alley comes down to it had been constructed at an angle of forty-five degrees, could the corporation successfully demur to a cause of action by one who is injured in consequence of such a slope? The position of counsel and the charge of the court would indicate that it could, if that was its “plan.” Railroads Dayton, 23 Ohio St., 510.
   Williams, J.

The instructions given and refused by the court of common pleas for which its judgment was reversed by the circuit court, raise the question whether a municipal corporation is exonerated from liability for injuries caused by an unsafe condition of a public way under its control which it has suffered to remain after notice, when the defect arose in the execution of a plan adopted by the corporation for a local improvement. Its immunity from liability is defended here on the ground that, in the adoption of plans for local improvements, municipal bodies are in the exercise either of a legislative power, which is discretionary and not subject to judicial control, or of a judicial power, and not responsible for errors of judgement. Cases are cited in support of the proposition, some of which place the exemption from liability on one of these grounds and some on the other; but none on both. It is said in Detroit v. Beckman, 34 Mich., 125, that ‘ ‘when complaint is made that the original plan of a public work is so defective as to render the work dangerous when completed, it is apparent that the fault is with legislative action.” And in Urquharty. Ogdensburg, 91 N. Y., 67, it is declared that the exercise of the power to make local improvements is quasi judicial. The courts of these states, in numerous decisions, maintain respectively these divergent views of the grounds on which municipal corporations are not liable in such cases, but concur in holding their non-liability; and on that question they are at variance with a large number of reported cases, especially of those decided by the courts of the middle and western states. In Blyhl v. Waterville, 57 Minn., 115, it is held that; “a municipal corporation is liable for an injury caused by having an unsafe sidewalk, the condition of which is due to the plan adopted for its construction, when the city could have remedied the defect, but did not do so.” And in Gould v. Topeka, 32 Kas., 845, the court hold that a “city has no more-right to plan or create an unsafe and dangerous condition of one of its streets than it has to plan or create a public or common nuisance.” The same doctrine is maintained in Indiana, Iowa, and other states. We will not attempt a review or discussion of the cases on this subject. In their briefs, which show diligent research, counsel have collected the cases on both sides, and ably presented their different views.

Text writers on the subject, lean to the side of municipal liability in such cases. In Dillon on Municipal Corporations, vol. 2, page 1294, under section 1024, it is said: “Does the principle that actionable negligence cannot be predica!ed of the plan itself, (post section 1046), go so far as to exempt from liability if that plan leaves the streets in an unsafe and dangerous condition for public use? In the author’s opinion this question ought to be answered in the negative.” And in Harris on Damages by Corporations, (vol. 1, page 165), that author says: “As to the liability of a city for damages for an injury resulting from a defective plan, the decisions are not all harmonious, but the weight of authority is now perhaps in favor of holding the city liable for defects in the plan a!s well as in the execution of the work.” And see Elliott on Roads and Streets, Chap. 20; and Jones on Neg. Mun. Corp. Chap. 4, page 67.

It has been held in this state, in a number of reported cases, that municipal corporations are liable for injuries caused to property abutting on streets, by changes in their grades, notwithstanding the establishment of the grade was a lawful exercise of municipal authority, and the work was done in conformity with the plan so adopted. The court recognizes that in this class of cases it has taken ground in advance of some adjudications elsewhere, and its position is maintained on principle. The doctrine established by them has since been adopted and followed in several other states. In Dayton v. Pease, 4 Ohio St., 80, the city of Dayton was held liable in damages for injuries to property resulting from the fall of a bridge forming part of one of its streets over a canal, where the fall was owing entirely to defects in the-plan of the bridge which had been approved by the council, and the bridge was constructed under its direction and in accordance with the plan. While the question here is not precisely the same as in that case, it is nearly so, and involves an application of the same principle. And, in view of the irreconcilable conflict of decisions elsewhere, on this question, we are at liberty to adopt such rule as will best harmonize with those of this court, and our legislation on the subject, and as to us seem most reasonable and practicable. Our statute, in express terms, places the public ways of each municipality, in its control, coupled with a positive command to keep them open, in repair, and free from nuisances. In the performance of that duty, the municipal authorities are required to remove, and keep removed from its streets, all dangerous defects, obstructions and nuisances of every kind, as they may arise, from time to time, from any cause. There is no exception from the requirement, in favor of defects, obstructions or nuisances which are placed, or caused to be placed, in a street, by the corporation or by its officers or agents; nor, is there any the less reason for holding the corporation liable for a disregard of its duty to remove such obstacles from its streets when placed there by its own act or the act of its officers, than there is for making it answerable for its negligence in permitting similar obstacles to remain when placed in the street by other persons. The statutory duty is ministerial in its nature, and mandatory in terms; and was imposed for the benefit of those having occasion to use the streets, so that they might use them with safety, and not for the benefit of the corporation; and ample means for its prompt and efficient performance are placed in the control of the corporation. While municipal legislation may be necessary in providing means and measures for the performance of the duty, as it is with respect to many strictly ministerial duties, its performance, or the omission to perform it, is not the exercise of legislative or judicial power, nor is it discretionary.

We are of opinion, therefore, that a municipal corporation should be held liable for injuries caused by a dangerous defect or obstruction in a street or sidewalk which it suffers to remain after reasonable notice of its existence, though it arose in the construction or alteration of the street or sidewalk in accordance with a plan adopted by the municipal authorities.

We express no opinion in regard to the weight of the evidence. There was not a total lack of evidence tending to support the issues for the plaintiff, and its sufficiency is for the jury under proper instructions, and for the lower courts.

Judgment affirmed.

Shauck, J., dissents.  