
    The City of Dayton v. Taylor's Administrator.
    
      Municipal corporation may establish drainage in manner at its discretion — Cannot be called to account by cottrt respecting error of judgment in plan — Notice of defect creates duty to remove defect — Liability of corporation — Unnecessary assumption of risk by pedestrian — Mtmicipal law.
    
    
      1. The manner in which drainage may be accomplished, if at all, is peculiarly within the discretion of a municipal corporation, and it cannot be called to account by the courts respecting its errors of judgment in the plans of a public improvement for drainage adopted by it. But after the construction of the improvement, when a defect dangerous to travel in a street, arising from such construction or the impairment thereof, is brought to the notice of the corporation, it becomes its ministerial duty, under the statute, to remove the defect, and a neglect or a refusal to remove the defect after such notice would make the corporation liable for an injury resulting therefrom.
    
      2. A pedestrian who, without necessity and for his own pleasure and convenience, departs from the sidewalks and street crossings, upon which he would have avoided injury, and crosses a street intersection diagonally, and is injured by slipping into a catch-basin which lay between the crossings, must be held to have assumed the risks which lay in the path which he thus chooses.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Montgomery county.
    This action was begun by Charles H. Taylor in the court of common pleas of Montgomery county, and since its commencement he has died, and his administrator has been made a party and prosecutes the action. The amended petition upon which the action was tried alleges that prior to the 13th of December, 1892, at which time the plaintiff received the injuries complained of, the defendant constructed a catch-basin on the southeast corner of Pierce and Hawker streets; that the top of the curb at the corner of the street and on either side of the line of the street crossing, was about sixteen inches above the bottom of the gutter; that there was a sudden and dangerous inclination of the ground around the catch-basin for a distance of about ten feet that extended on either side of the line of the street crossing and to the mouth of the catch-basin; and that on the date mentioned the catch-basin Avas open and unprotected; that on the night of said day there was no light of any kind at or near the said street crossing; that the manner in Avhich the catch-basin Avas constructed, the sudden and unnecessary fall given to the ground around the catch-basin, permitting the mouth of the same to remain open and unprotected, and the fact that there was no light at or near the crossing, all of which defendant knew and caused and permitted to remain in said condition, made it dangerous and unsafe for persons to travel on said street. Plaintiff also alleged that on the night of the 13th of December, 1892, while he was traveling along said Pierce street on his way home, without any fault or negligence on his part, he was precipitated against the top of and into said catch-basin, whereby he was seriously injured and sues for damages.
    The defendant, in answer to the amended petition, admitted that it had constructed a catch-basin at the southeast corner of Pierce and Hawker streets prior to the 13th of December, 1892, and that on the night of said day the plaintiff was traveling on foot on Pierce street and fell and hurt himself at the corner of Pierce and Hawker streets, and denies each and every other allegation in the petition contained. Defendant also alleges that it caused the said catch-basin, curbs, gutters and street crossing to be constructed in a careful, prudent and workman-like manner, placed the same in condition safe for pedestrians and caused the same to be so kept, and they were so kept on said night of December 13, 1892, and that said city was not in any degree negligent in regard to said catch-basin, curbs, gutters or crossing, and in no way contributed to the plaintiff’s accident; and that said accident was entirely due to the plaintiff’s own carelessness.
    In reply, the plaintiff denied that the city of Dayton constructed the catch-basin, curbs, and street crossing in a careful manner, placed the same in a ■condition safe for persons traveling on the street, and denies that they were so on that night. He ■denies that he was well acquainted with the corner and catch-basin and knew them to be unsafe or dangerous, and denies that he was careless.
    On the trial of said action in the court of common pleas the defendant requested the court to give the following special charge to the jury, to-wit: “If you find that the plaintiff departed from the sidewalk and way provided by the city for pedestrians, he assumed the risk of what might happen to him; and if you find from the evidence that the accident would not have happened if plaintiff had stayed upon the ■sidewalk and had crossed Hawker street at the regular sidewalk crossing, and that plaintiff’s act in •crossing catacorner from one corner of Pierce and Hawker streets to the other where the catch-basin is, was the proximate cause of the accident, your verdict will be for the defendant.”
    This was refused by the court and the defendant excepted. The verdict being for the plaintiff, the defendant filed a motion for new trial, which was overruled. A petition in error was filed in the cir■cuit- court and the judgment of the court of common pleas was affirmed. The action is now brought in ■this court to reverse the judgments of the circuit court and of the court of common pleas.
    
      Edwin P. Matthews, City Solicitor, for plaintiff in •error.
    The city must keep its streets in a reasonably good condition for use in the customary way by ordinary people. It is not an insurer against accidents, nor of safety of people, and it is not bound, to anticipate improbable or unprecedented events,, and to provide against their probable results. Van. Dyke v. Cincinnati, 1 Disney, 537; Village v. Kallager, 52 Ohio St., 183; Dillon on Mun. Corps., Sec.. 1019 ; Sachet on Ins. to Juries, pp. 368, 369 and 370; Beltz v. City of Yonkers, 48 N. Y., 401; Buscher v. City of La Fayette, 36 N. E., 371; Morse v. Belfast,. 77 Maine, 44; Perkins v. Fayette, 68 Maine., 152;, Fitzgerald v. City of Berlin, 64 Wis., 207.
    It does not appear from any of the evidence, even the plaintiff’s, that the city was negligent either in constructing or maintaining this catch-basin, or the-streets in its vicinity. It cannot be held negligent in the matter of the plans. Cooley on Torts, p. 620; Thomas oh Negligence, p. 993; Tiedman on Mun. Corps., Sec. 344-u; Sachet on Ins. to Juries, p. 377.
    There were no street lights at this corner. This,, however, does not constitute negligence on the part, of city. Cooley on Torts, p. 620; McHughes v. St. Paul, 1 Am. Neg. Rep., 273.
    Where a person tripped over a curbstone it was. held that the city was not responsible. Thomas on Negligence, p. 991.
    Appliances for drainage are necessary, and if they are constructed properly and with care, the city is. not liable for accidents which happen on account of same. McComber v. City of Taunton, 100 Mass., 256.
    Plaintiff could have crossed the street in the line of the sidewalhs and at right angles, and had he done-this, he would not have been hurt. He was guilty' of contributory negligence in leaving the traveled path, and is not entitled to recover. Beach on Contributory Negligence, Sec. 477; Groveport v. Bradfield, 2 C. C. R., 150; 1 Circ. Dec., 411; Tiedman on Mun. Corps., See. 352, pp. 719 and 720; Jones on Mun. Negligence, Sec. 227; Railroad Co. v. Transportation Co., 32 Ohio St., 116.
    
      
      George V. Nauerth, for defendant in error.
    Ro brief was filed by the defendant in error.
   Davis, J.

It is the duty of a municipal corporation to keep its streets in repair and free from obstruction and nuisance. It is sufficient, however, if the streets are kept in reasonably safe condition for the ordinary modes of travel. It is impossible to so conceive a plan of construction, and to so carefully maintain it, that injuries may not happen on the streets to heedless persons; and therefore cities and villages are not held liable as insurers against accidents occurring upon their streets, and are held only to the exercise of reasonable caution and foresight in providing for the use of the streets in the ordinary modes, and with ordinary care, by the traveler.

The defect complained of in this case was a catch-basin for surface water, at the intersection of two streets. There is no evidence that it was imperfectly constructed or improperly placed, or that it had become defective and dangerous since its construction, It was located at a corner of the intersection so that it was out of the traveled path of pedestrians, and it was so constructed, with a projecting top stone, that persons driving upon the street, and exercising ordinary care would no‘t be liable to accident from it. It was similar to other catch-basins in the city f.nd was built after plans and specifications prepared in the city engineer’s office, and was inspected and accepted by that officer.

Rut it is the plaintiff’s allegation “that the manner in which said catch-basin was constructed, the &udden and unnecessary fall given to the ground around the said catch-basin, they permitting the mouth of the same to remain open and unprotected, and the fact that there was no light at or near the said crossing * * * made it dangerous and unsafe for persons to travel on said streets.” The mere existence of tlie facts, that there was a sharp inclination of the ground to the catch-basin for the distance of ten feet, that the opening at the curb had neither screen nor .bars over it, and that the height of the curb from, the bottom of the gutter to the top of the catch-basin was sixteen inches, does not constitute negligence;. and there was no evidence to show that these were not-necessary conditions to the successful operation of the catch-basin. Indeed, there was some testimony directly to the contrary. Yet, however, these facts may be, appliances for drainage are necessary, and the manner in which drainage may be accomplished, if at all, is peculiarly within the discretion of the municipality, and it cannot be called to account by the courts respecting its errors of judgment in the plan of a public improvement. Wheeler v. Cincinnati, 19 Ohio St., 21, 22. But, according to many authorities, it would be held liable for negligence in carrying out the plan. At least, in Ohio, it cannot be doubted that if, after the construction of an improvement according to a plan and specifications adopted by the municipal authorities, notice should be brought home to the municipality that a street was not reasonably safe for use under ordinary circumstances, by reason of a faulty construction of the improvement, it would become a ministerial duty of the corporation to remove the defect, and a failure or refusal to do so after such notice, would make it liable to respond in damages for an injury resulting from the defect. City of Circleville v. Sohn, 59 Ohio St., 285. If it be conceded that such a defect existed here, there is an entire absence of proof that the corporation was aware of it.

Nor does it appear that the absence of a light at that point contributed in any degree to the plaintiff’s injury. If he had followed the ordinary traveled'way for pedestrians, he would not have come in contact with the catch-basin, which was situated between the street crossings at the southeast corner of the intersection of Pierce and Hawker streets. Without any necessity therefor, so far as appears in the record, and solely for his own pleasure and convenience, he left the sidewalk at the northwest corner of the street intersection and went diagonally across Hawker street to the southeast corner, where, using the plaintiff’s own language, he “walked right into the basin.” It is very clear, however, that he did not walk into, nor fall into, the catch-basin; for owing to the form of its construction, that could not be. It was raining and freezing, and the street was slippery. He must have fallen and slipped into the basin. The only way in which he could have gotten his leg into the opening was by sliding. It does not appear that it was the absence of a light which caused him to fall and slide into the catch-basin; but it does appear that he was out of the ordinary traveled way for pedestrians, that there was no necessity for being out of the way, and that if he had kept on the sidewalk and crossings, he would have avoided the injury. He was not exercising ordinary care for his own safety, under the circumstances; and in departing from the usual and safe way which the municipality had provided for him, he assumed all of the risks which lay in the path which he chose for himself.

We, therefore, hold that the court of common pleas erred in refusing to instruct the jury as requested by the defendant, and erred also in overruling the motion of the defendant for a new trial. For these errors, the judgment of the common pleas court and the judgment of the circuit court in affirming the same, are reversed and the cause is remanded for a new trial.

Judgment reversed.  