
    The City of Troy v. Brady, by His Next Friend.
    
      Action against municipality for damages — From alleged defect in bridge — Special finding that bridge was safe — Entitles to judgment though general verdict to contrary — Court procedure.
    
    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.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Miami county.
    The defendant in error brought suit in the court. of common pleas to recover from the city damages to compensate him for injuries sustained by reason of the defective bridge maintained by the city upon one of its streets crossing the Miami canal. Plaintiff, at the time of receiving his injury, was eight years of age, his injury consisting of the loss of a leg received by riding upon a swinging bridge, for pleasure, as the bridge was closing after having opened to permit the passage of a canal boat. The allegations of neglect contained in his petition are as follows :
    “Said city did carelessly and negligently make and leave at the extremity of the approach thereto and at either side of the approach thereto, an opening so that when the said bridge swung into the arc of the circle connecting it with the said approach, it formed an aperture in the form of a wedge in such a manner that any object, accidentally or otherwise passing over the end of said bridge, and dropping down a few inches over the said approach at the side and at the extremity thereto, would necessarily be caught between the end of said bridge and said approach, with great force and violence. Plaintiff further complains, of the said defendant’s negligence and says that just prior to the date of the injury hereinafter complained of, the said city of Troy negligently permitted said swing bridge to become so badly out of repair that although it was originally intended and purposed that the same would swing open upon its axis or balance upon the first ‘bump’ of the boat desiring to pass through, that just prior to and at the time of the accident hereinafter complained of the said defendant permitted the said bridge to become so badly out of repair that it required three or four hard bumps of the canal boat against the same in order to force the same open; all of which the said defendant knew or with reasonable diligence might have known.”
    The answer denied negligence on the part of the-city, and alleged that the injuries of the plaintiff were due wholly to his own recklessness. The cause was, tried to a jury, and a general verdict returned in favor of the plaintiff. With the general verdict, the jury returned special findings in answer .to interrogatories, among them, the following interrogatory and answer :• “Question. Was the bridge, at the time of the accident, in a reasonably safe condition for travel in the-ordinary mode? Answer. Yes.”
    Counsel for the city moved the court for a judgment in its favor upon the special findings, notwithstanding the general verdict to the contrary. This motion was overruled, and a judgment was entered against the city upon the general verdict. This judgment was affirmed by the circuit court.
    
      
      Mr. Leonard H. Shipman, city solicitor, and Mr. William H. Gilbert, for plaintiff in error, cited and commented upon the following authorities:
    2 Dillon Mun. Corp., Sec. 1024; Chase v. Cleveland, 44 Ohio St., 513; Village v. Gallager, 52 Ohio St., 183; Elliott on Roads and Streets, Sec. 56; 2 Dillon’s Mun. Corp., Sec. 1019; Secs. 5201, 5202, Rev. Stat.; Shaffer v. Sandusky, 33 Ohio St., 247; Village of Middleport v. Taylor, 1 Circ. Dec., 534; 2 C. C. R., 366; Railroad Co. v. Schwidling, 110 Pa. St., 258; Barnes v. Railway Co., 49 Am. St. Rep., 415; Stinson v. City of Gardner, 42 Me., 248; Bridge Co. v. Jackson, 114 Pa. St., 321; Canal Co. v. Murphy, 9 Bush (Ky.), 522; Harriman v. Railway Co., 45 Ohio St., 11; Hatfield v. Roper, 21 Wend., 615; Mangam v. Railroad Co., 38 N. Y., 455; Railway Co. v. Snyder, 18 Ohio St., 400; Mahnken v. Board, 5 Am. Neg. Rep., 192; Stout v. Railway Co., 17 Wall., 657; Frost v. Railroad Co., 64 N. H., 220; Daniels v. Railroad Co., 154 Mass., 349; Turess v. Railroad Co., 11 Am. & Eng. R. R. Ca., 297; Walsh v. Railroad Co., 145 N. Y., 301; Bates v. Railway Co., 90 Tenn., 36; Railroad Co. v. Reich, 61 N. J. L., 635; McEachren v. Railroad Co., 150 Mass., 515; Vanderbeck v. Headry, 34 N. J. L., 467, Peters v. Bowman, 115 Cal., 345; Kaumeier v. Railway Co., 40 L. R. A., 385; Gay v. Railway Co., 21 L. R. A., 448.
    
      Mr. J. A. Davy; Mr. A. B. Campbell; Mr. L. E. St. John; Mr. T. B. Kyle and Mr. George S. Long, for defendant in error, cited and commented upon the following authorities:
    
      Jansen v. Atchison, 16 Kan., 358; Eudora v. Miller, 30 Kan., 494; 9 Am. & Eng. Ency. Law (1 ed.), 379; 2 Am. & Eng. Ency. Law, 559; Chase v. Cleveland, 44 Ohio St., 513; Village v. Kallagher, 52 Ohio St., 183; Elliott on Roads and Streets, Sec. 56; Dayton v. Pease, 4 Ohio St., 80; 4 Field’s Lawyers’ Briefs, Secs. 687, 693; Harriman v. Railway Co., 45 Ohio St., 11; Cleveland v. King, 32 U. S., 295; Commissioners v. Railroad Co., 45 Ohio St., 401; State v. Commissioners, 49 Ohio St., 301; Moody v. St. Mary’s, 8 Circ. Dec., 341; 15 C. C. R., 446; Piqua v. Geist, 59 Ohio St., 163; 2 Am. Neg. Rep., 500; Railroad Co. v. Snyder, 18 Ohio St., 400; 4 Am. & Eng. Ency. Law, 43; Schmidt v. Railroad Co., 23 Wis., 186; Maugan v. Railroad Co., 38 N. Y., 455; Hatfield v. Roper, 21 Wend., 615; 34 Am. Dec., 273; Stout v. Railroad Co., 17 Wall., 657; 27 Am. & Eng. Ency. Law (1 ed.), 344; 5 Am. Neg. Rep., 192; Sec. 2640, Rev. Stat.
   Shauck, J.

Such consideration as was given to the evidence in this case, by the jury, in determining upon its general verdict, must have been rather to its volume than to its probative effect. The difficulty found in opening the bridge by pressure from passing boats, whether caused by the manner in which the bridge was constructed or the condition of its operating device, was neither the proximate nor a contributing cause of -the injury. Nor did the evidence show how the bridge could have been constructed so as to avoid the injury, in view of the circumstances, if it were the duty of the city to construct and maintain it for other purposes than those of ordinary travel. But however insufficient the evidence may have been to show negligence, it was submitted to the jury. That it failed to show a default in the performance of the city’s duty is conclusively established by the special finding that at the time of the accident the bridge was in a reasonably safe condition for travel in the ordinary mode.

The duty with regard to which the city is alleged to have been in default is imposed by Section 2640, Revised Statutes. It is to cause streets “to be kept open and in repair, and free from nuisance.” The special finding is, in substance, that this duty was performed by the city in constructing and maintaining the bridge. 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. Village of Cardington v. Frederick’s Admr., 46 Ohio St., 442; Zanesville v. Fannan, 53 Ohio St., 605; Circleville v. Sohn, 59 Ohio St., 285; Cincinnati v. Fleischer, Admr., 63 Ohio St., 229. The statute indicates the purpose in this regard for which a municipality may exercise the power of taxation. It is not liable as an insurer of those who go upon its streets. These familiar views were clearly expressed in the instructions which the trial judge gave to the jury in the present case. Why they were not allowed a controlling effect in disposing of the motion for a judgment does not appear. It would seem obvious that taxes should not be levied by a city for the payment of a judgment rendered against it without its default.

The plaintiff having failed to sustain his allegations of negligence against the city, the case presents no question of contributory negligence, nor any consideration of the degree of care which may be exacted from one of his age.

Judgments of the circuit and common pleas courts reversed, and judgment for plaintiff in error.

Bitrket, C. J., Spear, Davis, Price and Crew, JJ., concur.  