
    The City of Cincinnati v. Fleischer, Admr.
    
      Municipalities — Care required of them in construction and maintenance of streets and sidewalks — Carriage block near curb not a violation of statute (2640).
    
    The statute requires of municipalities the exercise of ordinary care in the construction and maintenance of streets and sidewalks; but that duty is not violated by permitting a carriage block of the usual size to occupy the usual position of such blocks, near the curb and not upon that portion of the sidewalk which is designed for the use of pedestrians going upon or passing along the walk.
    (Decided October 16, 1900.)
    Error to the Superior Court of Cincinnati.
    In his lifetime, George H. Bennett, the intestate of Fleischer, recovered a judgment against the city of Cincinnati on account of a personal injury which resulted to him from stumbling over a stepping stone or carriage block, located on a sidewalk of Race street, near the curb. The allegations of negligence in his petition are as follows: “Plaintiff says that the defendant is a city of the first grade of the first class, and is a municipal corporation, duly organized and existing under the laws of the state of Ohio. That heretofore, to-wit: On the 19th day of January, 1898, the defendant wrongfully, willfully, knowingly and negligently caused, suffered and permitted a large stone block about fourteen inches wide and about nine inches high and two and one-half feet long,, to be and to remain upon the sidewalk of Race street, on the west side of said street, between Piftn and Sixth streets, in the said city of Cincinnati, and opposite No. 529 Race street about two feet from the curb of said sidewalk. That the said Race street was then and there for a long time prior thereto, and still is a public street, which is much travelled and used by the citizens of the said city of Cincinnati, and by the public generally. That there was no guard, railing, lights or signs around the said block of stone, and that the said block of stone had been permitted by the defendant to remain upon the said sidewalk as stated, for a long space of time prior to the said 19th day of January, 1898, of all of which, the defendant then and there had due and reasonable notice.
    “That on said 19th day of January, 1898, about 6:20 p. m. of said date, when it was then and there dark; the plaintiff was then and there lawfully travelling on said street, walking south on the west side of the said Race street, and the plaintiff without any default or negligence on his part, and not knowing that the said block of stone was then and there obstructing the said sidewalk, the plaintiff being then and there unable to see said block of stone by reason of the darkness and rain, and of the number of the people carrying umbrellas raised who were then and there using said sidewalk, then and there struck his left foot against the said stone on the said sidewalk and then and there fell, and was then and there severely bruised, etc.”
    The city admitted its corporate character and that Race street was at the time of the plaintiff’s alleged injury, and for a long time prior thereto had heen, a public street; and it denied all other allegations of the petition. On the trial of the issues the city offered no evidence. The plaintiff introduced evidence tending to show that the carriage block was of stone, somewhat smaller than the usual size, and lying only far enough from the curb to permit the hubs and steps of carriages to pass. It was used for the convenience of persons getting into or alighting from carriages. It had occupied substantially the same position for more than fifteen years. At the conclusion of the plaintiff’s evidence counsel for the city requested the court to direct a verdict in its favor which was refused. Other instructions were requested and refused, but they are not material to the view which we take of the case.
    A verdict for the plaintiff having been returned a motion for a new trial was overruled and judgment was entered on the verdict. This judgment was affirmed by the superior court at general term.
    
      Ellis 6r. Kinhead; Wade H. Ellis; John V. Campbell and E. K. Rodgers, corporation counsel, for plaintiff in error.
    A stepping-stone is not an unlawful obstruction per se. Dubois v. Kingston, 102 N. Y., 219; Louth v. Thompson, 39 Atl. Rep., 1100.
    In the following cases, collected by Shearman & Redfield in their work on Negligence, section 367, note 9, the defendant was held not liable, the court finding the defects or obstructions complained of to be not dangerous. Dubois v. Kingston, 102 N. Y., 219; Ring v. Cohoes, 77 N. Y. 83; Macomber v. Taunton, 100 Mass., 255; Cushing v. Boston, 128 Mass., 330.
    
      The Supreme Court of Ohio has adopted the same general principle that such obstructions in the sidewalk are not of themselves unlawful. Elster v. Springfield, 49 Ohio St., 82.
    The burden was on the plaintiff below to prove negligence on the part of the city in the manner in which this stepping-stone was permitted to remain on the sidewalk, and that this negligence was the proximate cause of his injury, Shearman & Redfield on Negligence, sec. 57; Parrot v. Wells, Fargo & Co., 82 U. S. (15 Wall.), 524; Huff v. Austin, 46 Ohio St., 386; Wharton on Negligence, 421; Walker v. Chicago, R. I. & P. R. Co., 71 Ia., 658; Spencer v. Campbell, 9 Watts & S., 32.
    . This burden being upon the plaintiff below, it was. necessary for him to prove
    
      (a) That the stepping-stone was improperly, imprudently or unreasonably located; or,
    (5) That its size or shape was of such an unreasonable character as that it would not have been suffered to remain upon the sidewalk where it lay by an ordinarily prudent and careful person; and if either of these be proved, also,
    (c) That this improper location of the stone, or its. unreasonable shape or size, was the proximate cause of his injury.
    
    
      Edmund T. Clayton; Thomas L. Michie and Joel C. Clore, for defendant in error.
    We cite a few authorities selected from an overwhelming number, which establish the liability of municipal corporations in such cases: Merrill v. Hampden, 26 Me., 234; Horton v. Ipswich, 12 Cush., 488.
    
      What is a defect or want of repair within the meaning of the term as used in such a statute, is a question of fact to be determined by the jury under the instruction of the court upon the circumstances of each particular case. Wait’s Act. & Def., sec. 14, p. 675; Hutchinson v. Concord, 41 Vermont, 271;, Washburn v. Woodstock, 49 Id., 503; Howard v. Mendon, 118 Mass., 585; Winship v. Enfield, 42 N. H., 197; Draper v. Ironton, 42 Wis., 496.
    Dangerous pits, excavations, precipices, wells, stones or other obstructions, situated without the limits of the located highway, but so near it, and so situated that they would, without barriers or guards,, endanger the safety of passengers using the traveled or made part of the road, with ordinary care and diligence, are nuisances. Wait’s Act. & Def., sec. 4, p. 736; Davis v. Hill, 41 N. H., 329; Fisher v. Thirkell, 21 Mich., 1; 4 Am. Rep., 422; Hays v. Gallagher, 72 Penn. St., 136; Atlantic, etc. v. Wood, 48 Ga., 565;. Portland v. Richardson, 54 Me., 46; Loan v. Boston, 106 Mass., 450; Sebert v. Alpena, 78 Mich., 165; McGuire v. Spence, 91 N. Y., 303; Brusso v. Buffalo, 90 N. Y., 679; Weed v. Ballston, 76 N. Y., 333; Gray v. Henry County, 42 S. W., 333; Hinkley v. Rosendale, 70 N. W., 158; Chase County v. Stewart, 3 Kas. App., 403; Groundwater v. Washington, 92 Wis., 56; Slivitzki v. Wien, 93 Wis., 460; Cleveland v. Bangor, 87 Me., 259; Joliet v. Young, 61 Ill. App., 589; Arey v. Newton, 148 Mass., 598: Glantz v. South Bend, 106 Ind., 305; Indianapolis v. Cook, 99 Ind., 10; Sandy Lake View v. Forker, (Pa.), 18 A., 609; Schively v. Jenkinstown, Penn. Sup., 36 A., 754; 180 Pa. St., 196; Am. and Eng. Ency. of Law, Vol. 24, p. 108, and notes; Yeaw v. Town, 15 R. I., 20; Barber v. Roxbury, 11 Allen, 93 Mass., 320; King v. Oshkosh, 75 Wis., 517; Welkins v. Rutland, 61 Ver., 336; District of Columbia v. Boswell, 6 App. D. C., 402; Denver v. Stein, 53 Col., 283; Heckman v. Evenson, 73 N. W., 427.
   Si-iauck, C. J.,

The duty of municipalities with respect to streets and sidewalks is imposed by section 2640 of the Revised Statutes. It is to “cause them to be kept open and in repair, and free from nuisance.” They are required to maintain such portions of them as are designed for the use of vehicles and pedestrians in a condition of reasonable safety for such use. They are not required to exercise such extraordinary care as will absolutely prevent the occurrence of accidents, nor to prohibit such usual erections in proper portions of the streets as public convenience requires.

The block over which the plaintiff below fell, although upon the sidewalk, was not at a crossing nor upon any portion of the street designed for the use of passing pedestrians. It was within that portion of the street by the curb which, according to common knowledge, is devoted to carriage blocks, lamps, hitching posts and shade trees, which pedestrians of ordinary care observe and avoid. There is no reason to question the correctness of the observation of Spear, J., in Elster v. Springfield, 49 Ohio St., 82, 96: “The laying of sewers like that of gas and water pipes beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose, and long-continued usage.” Any rule which would sustain a recovery in this case would require municipalities to remove all shade trees and all such erections, whatever public inconvenience might result therefrom. In the well considered case of Dubois v. City of Kings ton, 102 N. Y., 219, where the facts shown and the municipal duties involved were, in substance, the same as those which are here presented, a recovery was denied.

The allegations of the petition in this case permitted the presumption that the block was of the usual size, and that it occupied the position usually assigned to such blocks. The evidence offered by the plaintiff showed affirmatively that it was of such usual size, and that it occupied such usual position. Therefore, the petition failed to state a cause of action, and the instruction requested should have been given.

Judgment reversed.

Spear, J.,

dissents. The syllabus assumes that the block stood in the usual place on the sidewalk and in a place where pedestrians were not accustomed to walk. Neither assumption is justified by the record. The stone stood thirteen inches from the curb, instead of at the curb, and was on Race street in Cincinnati, between Sixth street and Shillito Place, a thickly-settled and much frequented business street, where there were likely to be, at certain times of day, crowds of people. In my opinion the law applicable to the facts was correctly given by the presiding judge, and the jury’s verdict was fully warranted by the facts.  