
    City of Springfield v. McDaniel.
    (Decided December 10, 1932.)
    
      Mr. M. E. Spencer, city solicitor, for plaintiff in error.
    
      Messrs. Anderson & McKee and Mr. W. T. Mahar, for defendant in error.
   Kunkle, J.

This is an action in -which defendant in error, Gladys Y. McDaniel, plaintiff in the lower court, sought to recover damages for personal injuries received by reason of an accident which occurred at the bridge over the Pennsylvania Railroad tracks on South Lowry avenue in the city of Springfield, Ohio.

The case presents an interesting question, especially in so far as the construction and maintenance of this bridge is concerned and the injuries which resulted to defendant in error by reason of the particular construction of the bridge.

The petition of defendant in error describes in detail the construction of the bridge in question. It avers that Lowry avenue is a public street in the city of Springfield, running north and south across the railroad tracks of the Pennsylvania Railroad Company by means of an overhead bridge; that Lowry avenue to the north of said bridge has a roadway thirty feet in width from curb to curb with an eight-foot sidewalk on each side thereof approaching said bridge on a rising elevation; that said bridge was so negligently and carelessly constructed and maintained in said street by the city of Springfield as to constitute an obstruction and nuisance in this, .to wit, that said bridge has a total width of only about twenty-nine and one-half feet, of which only about eighteen feet is in the roadway portion thereof, while the sidewalk portion, five, feet in width on each side thereof, is reserved for pedestrians; that said sidewalk portions are separated from the roadway part by steel framework barriers or girders, nine inches in width and five feet in height, extending the entire length of the bridge; that the said bridge was so constructed that the center line thereof does not constitute an extension of the center line of the thirty-foot roadway portion of Lowry avenue, but lies approximately two feet to the east of said center line extended, as a result whereof the iron barrier or girder extending along the west side of the roadway portion of the said bridge stands as an obstruction therein some seven feet ont from the west curb line of said street extended in a straight line, and is so constructed and maintained by the city as to be in a direct line of south bound travel on the west side of said street, and in such a manner that vehicles proceeding along the west side of said street are compelled to leave a position near the curb and swerve at least seven feet to the east in order to avoid collision with such steel framework barrier or girder; that the city of Springfield had knowledge of the bridge and its condition, or by the use of ordinary care should have had knowledge thereof, and that, nevertheless, said city permitted same to remain in substantially that condition for at least twenty-five years.

The petition then avers that on the evening of November 2, 1930, about 7 o’clock, p. m., plaintiff was riding as a passenger in a Ford automobile driven by her husband; that said machine was proceeding in a southerly direction along the west side of said Lowry avenue at a rate of speed of about 20 miles an hour; that the night was dark, foggy and rainy; that there was no signal light or barrier warning of the condition or obstacle placed in said street, or of the presence of any such framework at said point, or any warning to her of any nature; that as they approached the bridge where said barrier was so located the machine in which plaintiff was riding as such passenger collided with said upright framework of said bridge and by reason thereof the machine was upset and wrecked, throwing the plaintiff from the machine to the pavement and injuring her in the respects stated in detail in the petition, to her damage in the sum of ten thousand dollars.

The city of Springfield for amended answer admits that it is a municipal corporation; that Lowry avenue is a public street, as averred in the petition, and that the tracks of the railroad company at the point designated in the petition are crossed by means of an overhead bridge and that the width of roadway of Lowry avenue at the said point is as averred in the petition; admits that the bridge referred to was constructed by it in 1872, and has been maintained by it, and avers that at the time of said accident said bridge was in good repair, free from nuisance, and suitable for all usual and proper uses for which it was intended, and that the design of said bridge was proper and correct and one generally approved and followed. Defendant admits that on November 2, 1930, at about the hour of 7 o’clock, 'at which time it was raining, the atmosphere was such that operators of motor vehicles along said street could not see ahead without great difficulty; it further admits that plaintiff was a passenger in an automobile driven by her husband, who drove his automobile into the framework of said bridge, causing some damage to his automobile and some personal injury to plaintiff, but that defendant city does not know the extent thereof. The city also admits there was no light on said bridge, but states that there was a light immediately north thereof, and claims that the collision was caused by the negligence of the said Howard McDaniel, the driver of the automobile, and the plaintiff in not keeping a lookout ahead of said automobile at said time and place. The city further denies all of the averments of the petition not specifically admitted, and for a second defense pleads contributory negligence upon the part of plaintiff.

A reply was filed by plaintiff, and the case was submitted to a jury upon the issues joined by the pleadings, with the result that the jury returned a verdict in favor of plaintiff in the sum of five thousand dollars.

Motion for a new trial having been filed and overruled, and judgment having been entered upon the verdict, error is prosecuted to this court.

We have considered with great care the record in this case, together with the exhaustive briefs of counsel, as the same present an interesting question in so far as the maintenance of the bridge in question is concerned. We shall not attempt to discuss the testimony, nor to review the authorities cited in detail. It will not be necessary so to do, as counsel are familiar with same. We will content ourselves with announcing the conclusion at which we have arrived upon the different questions presented.

There is no question of notice in this case as the city admits that it constructed the bridge and has maintained it in its present condition for a number of years.

The case is also unusual in that most suits against cities for damages result from some defect in the traveled portion of the roadway. It is admitted that the traveled portion of Lowry avenue as it approached the bridge in question, and the roadway of the said bridge, were in good repair.

Section 3714, General Code, provides that municipal corporations shall cause the streets, bridges, etc., of its highways to be kept open, in repair and free from nuisance. Did this bridge as constructed and maintained by the city constitute a nuisance?

The nature of the construction of this bridge, as averred in the petition, is substantially supported by the testimony. It is- admitted that it was raining upon the night in question; that the atmosphere was misty; and that it was difficult to see ahead for any considerable distance.

On page 4, and the following pages of the record, the husband of plaintiff describes the manner in which he approached this bridge, the rate of speed at which he was traveling and the result of his collision with this girder as follows:

“Q. Just what happened as you neared the Pennsylvania Railroad bridge on Lowry Avenue? A. Well, you go up quite a little grade there on the bridge — not having any warning light of any kind, and the light there was insufficient to show the bridge — if the light was burning — I couldn’t say — but it was insufficient to show the bridge, and just about the time we struck the bridge I saw it — not before.

“Q. What happened then? A. As near as I can remember it seems to me the machine — the right wheel ran up the girder and turned the machine completely over and then it settled back on the side.

“Q. What do you mean? A. The right wheel — there is a flange on each side of the girder. The side of it sticks up between seven or nine feet — it might not be quite that high; the side that extends up and the right wheel came on the bridge and there is a flange that held the wheel there and the machine turned completely over on the top,” etc.

The testimony shows that there was a flange on this girder which doubtless contributed to holding the wheel of the automobile. This witness further describes the manner of approaching this bridge, and his conduct in driving the machine, and the absence of a warning light.

Mr. Bird, civil engineer, also describes this bridge, the approach thereto, and gives in detail the measurements which he made. He refers to the width of these flanges as being sufficient to accommodate the tire of an automobile.

The interesting question in the case relates to the issue as to whether the bridge, as constructed and maintained, constitutes a nuisance, in violation of the provisions of Section 3714, General Code, above cited.

The jury in effect found that it did. At the request of counsel for plaintiff in error, the court submitted to the jury the following interrogatory: “Q. Was

Lowry Avenue and the bridge at the time of the accident in a reasonably safe condition for travel in the ordinary mode? A. No.”

This answer, as well as the general verdict, was signed by eleven of the twelve jurors.

We concede that this question is. not free from some doubt, yet upon a careful consideration of the fact-s disclosed by the record we are of opinion that the jury was warranted in making the finding which it did, and that such bridge, as constructed and maintained by the city under circumstances such as existed on the evening in question, constituted a nuisance in this public street.

It is admitted that there was no light over this bridge, but the testimony shows that there was an overhead street light a short distance north of the bridge.

The city claims that the failure of the wiper on the windshield of the said automobile to work properly caused or contributed to the accident. The husband of plaintiff in error testified that the wiper on the windshield was in working order, and that he was using the same. The plaintiff testified in substance to the same effect. There is some testimony, however, tending to show that the windshield wiper was not working at the time in question. This therefore became a question of fact for the jury rather than the court.

We think the court properly overruled the motion of plaintiff in error for an instructed verdict. There were questions of fact involved which should have been determined by the jury rather than the court.

The question as to -whether defendant in error was guilty of contributory negligence was a question of fact for the jury and we find nothing in the record which would warrant this court in disturbing the verdict upon that issue.

It must be kept in mind that the defendant in error was a passenger. It is true she was a passenger with her husband, but the fact that the driver of the automobile was her husband does not change the rule as to what constitutes contributory negligence upon the part of a passenger,

The trial court, at-the request of counsel for plaintiff in error, gave four special instructions to the jury in advance of the arguments of counsel. These four special charges stated the law applicable to the case in the most favorable light to which plaintiff in error was entitled.

Special instruction No. 2 was as follows: “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.”

Special Instruction No. 3 was as follows: “I charge you that if you find from the evidence, that plaintiff was seated beside the driver, with apparently equal opportunity to observe impending dangers, and within easy access so as to readily communicate to the driver the result of her observations, she was required to exercise ordinary care for her own safety, and was required to so use her faculties of sight and hearing to discover dangers incident to such bridge and apprise the driver thereof as would a person of reasonable and ordinary prudence under the same or similar circumstances. ’ ’

The evidence shows that the windshield immediately in front of plaintiff was covered with mist which affected her vision ahead, but as above stated the testimony of defendant in error and her husband is to the effect that the wiper on the windshield in front of the driver was in working order and "was being used at the time in question by the driver.

In reference to the charge of contributory negligence upon the part of the passenger, we think, as above stated, that the special instruction given by the court at the request of counsel for plaintiff in error, and the general charge of the court upon this subject, presented that issue to the jury in the most favorable light to which plaintiff in error was entitled.

The rule is well settled in this state that a passenger js only required to do that which a passenger under like circumstances, in the exercise of ordinary care, would be required to do. There may be occasions when a passenger is in a position to see and know evidences of danger which might not be observed by the driver, when ordinary care would require that the passenger warn the driver of such danger, but, the passenger is required to do only those things which a passenger under like circumstances in the exercise of ordinary care would do.

Counsel for plaintiff in error seriously contends that the verdict is excessive and must have been rendered under the influence of passion or prejudice. Defendant in error, her husband and other witnesses have testified in detail as to the injuries sustained in this accident and as to the result of such injuries.

Dr. Rinehart testifies in detail as to the nature of the injuries received by defendant in error in this accident. He testifies that the injuries due to the contusions about the pelvis will be permanent. He explains in detail the effect of such injuries. He' also testifies that the injury to her shoulder was such that the shoulder will always be weak.

We think the award made by the jury was liberal, but from a consideration of the record we would not be prepared to find that in view of the permanency of some of the injuries so received the verdict was the result of passion or prejudice, or is so excessive as to warrant a reviewing court in disturbing the same. .

We find no prejudicial error in the lower court in dismissing the railroad company from this proceeding.

We have considered all of the errors complained of by counsel for plaintiff in error both in the brief and during the oral argument of the case, but finding no error in the record which we think would justify this court in disturbing the judgment of the lower court the same will be affirmed. T , , ,

T , Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur,  