
    Griffin, Appellee, v. City of Cincinnati, Appellant.
    (No. 33799
    Decided November 24, 1954.)
    
      
      Mr. Leo J. Brumleve,Jr., and Mr. Sidney C. Brant, for appellee.
    
      Mr. Henry M. Bruestle, city solicitor, Mr. Maurice W. Jacobs, Mr. William A. McClain and Mr. Edgar W. Jacobs, for appellant.
   Lamneck, J.

The city has listed six assignments of error in its brief filed in this court, but it stresses the following:

1. That no qualified nuisance was proved by the plaintiff.

2. That the plaintiff’s own evidence raised an unrebutted inference of sole or contributory negligence.

3. -That it was not proved that the city had actual or constructive notice of the alleged defective condition of the sidewalk.

4. That the trial court erred in giving and refusing to give certain special charges.

Section 3714, General Code (Section 723.01, Revised Code), provides in part:

“Municipal coi’porations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of * * * streets, avenues, alleys, sidewalks * * * within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

In construing Section 3714, General Code, this court has made a number of pronouncements which must be considered as fundamental.

1. A municipality is not, as a matter of law, an insurer of the safety of persons in the use of its streets and sidewalks. Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44.

2. A municipality, as a matter of law, cannot be held responsible as to every depression, difference in grade or unevenness in its streets and sidewalks. Deckant v. City of Cleveland, 155 Ohio St., 498, 99 N. E. (2d), 609.

3. A variation of from one-half to three-fourths of an inch in the height of adjacent sections of a sidewalk is a slight defect and does not constitute a qualified nuisance. Kimball v. City of Cincinnati, 160 Ohio St., 370, 116 N. E. (2d), 708.

The court in Kimball v. Cincinnati, supra, quoted with approval the following statement contained in the opinion in Gastel v. City of New York, 194 N. Y., 15, 86 N. E., 833, 128 Am. St. Rep., 540:

“We think we may take judicial notice of the fact which ordinary observation discloses that there is scarcely a rod in the streets of any city in which there may not be discovered some little unevenness or irregularity in sidewalks, crosswalks, curbs, or pavements. As the result of various causes, climatic and otherwise, they are constantly occurring and recurring. Ordinarily they cause no difficulties, and it would require a vast expenditure of money to remove them all.' The recent tendency of the law as evidenced by legislative enactment has been in the direction of making less rather than more stringent the rules of municipal liability in such cases, and, directing our considerations to the precise facts here presented, we think we should be disregarding those principles of liability which are justified by reason and public policy if we should permit a recovery.”

The Court of Appeals in the instant case came to the conclusion that this was a borderline case. This was no doubt due to the fact that it is almost impossible to lay down a common-sense rule applicable to all sidewalk cases, which will not impose upon municipalities impossible financial and administrative burdens and at the same time make sidewalks reasonably safe for public use.

The difficulty arises in fixing precise bounds between those abrupt raises and depressions from which negligence may be inferred and those which, as a matter of law, do not constitute negligence. Nearly all trial courts have had difficulty in determining whether a particular defect in a street or sidewalk does or does not constitute negligence. However, where the irregularity is slight, the court should, as a matter of law, hold that such unevenness is not evidence of negligence. We feel that, where a case presents only a situation of an abrupt raise of a few inches and there are no other defects, such raise should be considered as a slight defect which may ordinarily be expected.

An abrupt raise in a sidewalk does not of itself constitute negligence on the part of the municipality. All the attendant circumstances should be taken into consideration, and whether a sidewalk is reasonably safe or dangerous for travel does not depend alone upon the matter of elevation or depression. The locality, the amount of use and travel, the condition of the sidewalk as a whole, whether it is in a business or a residence neighborhood, and whether it is in a solidly or sparsely built up section are all circumstances which must be taken into consideration in addition to an elevation or depression. A cinder walk cannot be maintained as even as a brick or concrete one. A municipality is not required to maintain any particular type of sidewalk.

In Sears v. Town of Greenfield, 287 Mass., 445, 192 N. E., 1, it is stated:

Manifestly an extent or character of a projection or depression in a highway [or sidewalk] which, under one set of attendant circumstances, would amount to an actionable defect by reason of the statute would not necessarily, under other and different conditions, constitute such a defect.”

If the difference in elevation of adjoining parts of a sidewalk is so great that no reasonable mind could say it is not dangerous, and a municipality had actual or constructive notice of such defect, the case should be submitted to the jury with instructions to determine whether the condition under all the attendant circumstances shown in evidence was the direct and proximate cause of a claimed injury. On the other hand if the difference in elevation or depression is slight and such as must be expected and endured, then the case should be taken from the jury.

There is evidence in this case tending to show that on- the evening of March 3, 1949, the plaintiff, aged 37 years and in good health, was walking eastwardly on the north sidewalk of Eighth Street in the city of Cincinnati; .that, while walking in an ordinary manner and as he approached the intersection of Eighth and Sycamore Streets, he attempted to turn northwardly into Sycamore Street; that, as he was making the turn, he stepped into a triangular hole in a section of the sidewalk adjacent to an abrupt raise caused by the buckling of cement blocks and as a result fell to the ground and was injured; that the sidewalk was cracked and broken; that “the concrete slabs were raised [and] some loivered about anywhere from an inch and a half to two inches”; that the condition had existed from a year to a year and a half; that the plaintiff was a stranger to the neighborhood; that it was twilight and an electric light on a stanchion located near the curb on Sycamore Street and on a projected line of the north edge of the Eighth Street sidewalk was lighted and there were other lights in the neighborhood; and that the plaintiff did not see either the offset or the depression before he fell while in the act of turning to go north on Sycamore Street.

As defined in Taylor v. Cincinnati, supra, “a qualified. nuisance or a nuisance dependent upon negligence consists of anything lawfully, but so negligently or carelessly done or permitted as to create a potential or' unreasonable risk of harm, which, in due course, results in injury to another.”

Applying this rule of nuisance to the evidence above set forth, we are of the opinion that the condition of the sidewalk was such that it could reasonably be inferred that it was not in ordinary repair and not in a reasonably safe condition for travel in the usual and ordinary mode.

- Did the plaintiff use ordinary care for his own safety? There is evidence to show that he did not see the defect; that he was looking straight ahead in order to make the turn and to avoid collision with other pedestrians who might be walking on the cross street; that he was a stranger to the neighborhood; and that the street lights were turned on early on the date of the accident.

A pedestrian is required to use his senses to avoid injury while walking on a sidewalk, but this does not mean that he is required as a matter of law to keep his eyes upon the sidewalk at all times. It may be necessary to keep a lookout for traffic and other pedestrians to avoid collision. Where a defect is clearly discernible from a reasonable distance, the failure to see and avoid it constitutes contributory negligence.

In Highway Construction Co. v. Sorna, 122 Ohio St., 258, 171 N. E., 312, it was held:

“One using a sidewalk, crosswalk, 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.”

But there is no such want of ordinary care on the part of the plaintiff in the instant case. We are unable to find that the plaintiff’s own evidence raised an unrebutted inference of sole or contributory negligence which was the proximate cause of the accident and the resulting injuries.

The mere fact that a pedestrian who is not negligent falls as a result of a defect in a sidewalk is not sufficient to establish liability of a municipal corporation. It must be shown also that the municipality had either actual or constructive notice of such defect. As there is no claim that there was actual notice in this case, constructive notice must be proved before the plaintiff can recover.

There is evidence that the alleged defect was in existence from a year to a year and a half. We believe that it was a function of the jury to determine from such evidence, under proper instructions, whether the condition complained of had existed for such a period of time and under such circumstances that a reasonably prudent person, having charge of such matters for the city, in the exercise of ordinary care would have known of such condition.

We have examined the general charge of the trial court on ordinary care, constructive notice and contributory negligence, and we find no error therein.

We also find that the court did not err in giving special charge No. 3, relating to pedestrians keeping their eyes on the sidewalk; in giving special charge No. 4, relating to the duty of pedestrians in using their senses while, walking on a sidewalk; or in giving special charge No. 5, relating to the duty of a city under Section 3714, General Code.

We think that the refusal of the court to give the city’s requested charge No. 12, relating to ordinary care to be exercised by a pedestrian in voluntarily crossing a defect in a public sidewalk, did not constitute reversible error because its terminology was not applicable in full to the facts. The court properly charged on ordinary care in the general charge.

If Section 3714, General Code (Section 723.01, Revised Code), places too great a burden on the financial ability of municipalities to operate under it, that is a question for legislative consideration. This court in the exercise of judicial functions may not nullify a constitutional statute by judicial decree.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Weygandt, C. J., Zimmerman and Stewart, JJ., concur.

Middleton, Taet and Hart, JJ., dissent.

Taft, J.,

dissenting. In my opinion, the decisive question to be determined in the instant case is whether reasonable men could come to the conclusion that the sidewall? upon which plaintiff fell was not “in a reasonably safe condition for travel in the usual and ordinary modes.'” This court has consistently held that there can be no recovery for injuries caused by a defect in a street if the street was “in a reasonably safe condition for travel in the usual and ordinary modes.”

Thus, in Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, paragraph five of the syllabus reads in part:

‘ ‘ The duty resting upon municipal corporations, under Section 3714, General Code, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable.” (Emphasis added.)

In Drake v. City of East Cleveland, 101 Ohio St., 111, 127 N. E., 469, paragraph one of the syllabus refers to “the obligation of a municipality to keep its public ways in a reasonably safe condition for public travel” and states that such obligation “exists with respect to such persons as travel the ways in the usual and ordinary modes.”

In Gibbs v. Village of Girard, 88 Ohio St., 34, 102 N. E., 299, paragraph one of the syllabus reads:

“1. Municipalities are not insurers of the safety of their streets and sidewalks, but are required to exercise ordinary care in keeping their streets and sidewalks in a reasonably safe condition for public travel, and a failure of duty in this respect is negligence. ’ ’ (Emphasis added.)

In City of Dayton v. Glaser, 76 Ohio St., 471, 81 N. E., 991, 12 L. R. A. (N. S.), 916, the syllabus reads:

“A municipal corporation is charged with the duty of keeping its streets free from nuisance and in a rea sonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.” (Emphasis added.)

In City of Troy v. Brady, 67 Ohio St., 65, 65 N. E., 616, the syllabus reads:

“In the trial of an action to recover from a municipality damages sustained by reason of an alleged defect in a bridge, a special finding by the jury that at the time of the accident the bridge was in a reasonably safe condition for travel in the ordinary mode entitles it to a judgment, notwithstanding a general verdict to the contrary.” (Emphasis added.)

In the opinion by Shauck, J., it is said at page 69:

“When a bridge, and a street of which it is a part, are in a reasonably safe condition for travel in the ordinary mode, they are free from nuisance.” (Emphasis added.)

In Deckant v. City of Cleveland, 155 Ohio St., 498, 99 N. E. (2d), 609, it is said in the opinion by Stewart, J., at page 502:

“It has long been settled in Ohio that a municipal corporation is not an insurer of the safety of its streets. It is charged with the duty of keeping them free from nuisance and in a reasonably safe condition for travel in the usual modes; and when they are in that condition the municipality is not chargeable with negligence although an accident occurs in the use of the streets.” (Emphasis added.)

In City of Dayton v. Glaser, supra, the facts and the holding of the court are well disclosed by the following language from the opinion:

“The duty is to make the streets reasonably safe for travel in the ordinary modes, and the inquiry should be, not was there some defect or obstruction in the street, but, was the street, in the condition it was proven to have been in, with the defect or obstruction, in a reasonably safe condition for travel in the ordinary modes at the time the accident happened, and was the accident the natural and probable result of the use of the street in that condition, and one that should have been foreseen by those charged with the duty of maintaining the street * * *.
“The street on which the accident happened had been paved with asphalt, which was two and one-half inches thick upon a concrete base, and had been worn out and broken out in many places, and the wheels of vehicles as they would drop into these places wore them deeper, so that there were many holes in the street from one to four inches in depth, and some of them extending over three or four square feet of the surface. * * * one of the front wheels [of a grocery-man’s wagon] ran into one of the holes or depressions in the street, causing the injury, as already stated. * * * we are of the opinion that the street was in a reasonably safe condition and that the accident or any accident, was not the natural or probable result of using the street, and such as should have been foreseen.
“The street had been for a long time in this condition, it was much traveled daily and no other accident had resulted from its use. Without stirring outside of the statehouse grounds like holes may be found in the walks.” (Emphasis added.)

From the opinion and from the syllabus, it is apparent that the decision in Gibbs v. Village of Girard, supra, was based upon the so-called scintilla rule. The reasons supporting the decision vanished with the overruling of the cases relied upon in that opinion as establishing that rule with respect to submission of cases to the jury. See Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 475, 478, 189 N. E., 246.

The difficulties which some of the courts of this state seem to have had in applying the law in this kind of a case have arisen largely from their failure to recognize that there must be something more than a proximate causal relationship between a plaintiff’s injuries and a defective condition of the street which the defendant municipality knew of or should have known of. The courts have a further duty in such ‘a case to determine whether the evidence was such as to justify a reasonable conclusion that, by reason of such defective condition, the street was not “in a reasonably safe condition for travel in the usual and ordinary modes.”

Obviously any difference in grade between two adjacent parts of a street may involve a potential danger of injury to a pedestrian. For example, the usual substantial difference in grade between a sidewalk and a street at the curb may involve such a danger. It would hardly be contended that such a potential danger would ordinarily justify liability of a municipality for injuries caused thereby. Likewise, the difference in grade involved in ordinary steps which are in perfect condition may involve such a danger. Here, again, it would hardly be contended that such a potential danger would justify liability of a municipality for injury caused thereby. Also, we all know that injuries often result even from falls on sidewalks where there are no defects at all.

Of course, the question whether a street is “in a reasonably safe condition for travel in the usual and ordinary modes” is ordinarily a question of fact for determination by the jury as the trier of the facts. Gibbs v. Village of Girard, supra (paragraph four of syllabus). However, where reasonable minds can come to only one conclusion on such a question of fact, it is the duty of the trial court to determine that question of fact in accordance with that conclusion; and it is error for the trial court to give the jury an opportunity to determine it otherwise. Hamden Lodge v. Ohio Fuel Gas Co., supra.

In my opinion, the vague and indefinite evidence in the instant case as to defects in the sidewalk where plaintiff fell was not such as to justify, without a substantial speculation as to the nature and extent of those defects, a conclusion by reasonable minds that that sidewalk, lighted as it was, was not “in a reasonably safe condition for travel” on foot, which was admittedly the “usual and ordinary” mode of travel on that part of the street.

Middleton and Hart, JJ., concur in the foregoing dissenting opinion.  