
    MUNICIPAL CORPORATIONS — NEGLIGENCE.
    [Lucas Circurt Court,
    June 18, 1901.]
    Haynes, Parker and Hull, JJ.
    Michael Nitz v. Toledo.
    1. Municipal Corporation — Unguarded Excavations. .
    A person walking upon a street in the ordinary way and where he has a right to go, and where people generally are accustomed to go, has a right to have ordinary care exercised toward him on the part of the city in keeping its streets and alley-ways in repair ; and if an excavation is made with the knowledge and authority of the city and negligently left without light or guard, and such person, without negligence on his part, falls into it, he can recover for injuries thereby received.
    2. Public Way Established Through Market Building.
    Where the platform of a set of wagon scales, situated in the middle of a city market building, to which sidewalks were laid from opposite sides of the street in the center of which the market building stands, opposite to the city buildings on one side and an alley running to a parallel street on the other, and to which steps were constructed leading from the platform of the market building to the scales on each side, making the platform accessible to pedestrians from every direction, had been used as a common thoroughfare by people generally in that part of the city, both day and night, for a great many years, with the city’s knowledge of such use, a pedestrian is not a trespasser in walking thereon, though he may have gone out of his way to do so and though he might have walked upon the street instead, and although the place was originally intended for market purposes only.
    8. City Liable bob. Unguarded Excavation Therein.
    Under circumstances stated in the preceding paragraph, where the scales were removed by the city, or with its knowledge, and an excavation, seven or eight feet deep, caused thereby, left unguarded and unlighted, the city is liable for injuries to pedestrians who, without knowledge of the danger, are injured thereby. Therefore, in an action for such injuries, a charge which, in substance, directs the jury that if the platform was used for market purposes and originally intended for that use only, and the plaintiff was walking upon it for his own convenience, the city would not be liable for injuries resulting from the unguarded condition of the excavation caused by a removal of the scales, is erroneous.
    4. Contributory Negligence — Must be Proximate Cause.
    A charge that “ If he (nlaintiff) was so guilty of negligence, he cannot recover in this action, although you may find from the testimony that the defendant * * * was negligent, as claimed; if the negligence of the plaintiff contributed in any degree to the bringing of this injury upon himself, there can be no recovery,” is erroneous. The rule is the same as to the plaintiff, in an action for negligence, that it is as to the defendant, and the negligence, to bar a recovery, must have contributed in some degree directly to the injury complained of.
    6. Knowledge oe Oeeicers — Knowledge oe City.
    Where the undisputed evidence, in an action for personal injuries sustained by reason of the negligence of a city in not properly guarding an excavation in a place used as a sidewalk, caused by removal of a set of scales, shows that the city by ordinance leased the scales to a certain person, and through the proper officer notified the former lessee to remove his scales and give way to the new lessee, that the city auditor was personally notified of their removal by the retiring lessee, immediately after removal, that the new lessee was notified o such fact the same day by such officer, and the market superintendent was present and knew that the same were removed, the city cannot deny notice thereof so as to excuse it from properly guarding the excavation.
    8. Erroneous Charge as to Notice.
    It is the duty of a market superintendent to see that a market place is not rendered dangerous, either by obstructions or excavations. Therefore the actual knowledge and presence of such officer when market scales were removed, leaving an excavation seven or eight feet deep, in a platform gene- ■ rally used as a thoroughfare by pedestrians, for many years, and with the city’s knowledge, constitutes notice to the city of the excavation and a charge from which the jury were led to conclude that inasmuch as the scales were not removed until noon and an accident, for which suit was brought, happened in the evening of the same day, the city would not be charged with constructive notice, and that actual notice would be required, is misleading and erroneous.
    Heard on Error.
    
      E. L. Twing, for plaintiff, cited;
    Iron R. R. Co. v. Mowery, 36 Ohio St. 418, 419 [38 Am. Rep. 597]; Russell v. Columbia, 74 Mo. 480 [41 Am. Rep. 325]; Booth on Street Railways, Sec. 409; Ridenhour v. Railway Co., 13 S. W. Rep. 889 [102 Mo. 270]; Schweinfurth v. Railway Cc., 60 Ohio St. 215 [54 N. E. Rep. 89]; Sherman & Redf. Neg., Sec. 94; Sproul v. Seattle (City), 49 Pac. Rep. 489 [17 Wash. Rep. 256]; Kansas City v. Orr, 8 Am. Neg. Rep. 36; Stewart v. Ripon (City), 38 Wis. Rep. 585; Sherman & Redf. Neg., Sec. 3.58; Haniford v. Kansas City, 15 S. W. Rep. 753 [103 Mo. 172]; Abliene (City) v. Cowperthwait, 34 Pac. Rep. 795 [52 Kansas, 324]-; Blessington v. Boston. 26 N. E. Rep. 113 [153 Mass. 409; Henry ,v. Railway Co., 21 S. W. Rep. 214 [113 Mo. 525]; Collins v. Council Bluffs (City), 32 Iowa, 324; Fritsch v. Allegheny (City), 91 Pa. St. 226; Chicago (City) v. Babcock 82 N. E. Rep. 271 [148 111. 358]; Goshen (City) v. Alford, 55 N. E. Rep. 27 [154 Ind. 58]; Rehberg v, New York (City), 91 N. Y. Rep. 137 [43 Am. Rep. 657]; Brusco v. Buffalo, [90 N. Y. 679]; Twogood v. New York (City), 6 N. E. Rep, 275 [102 N. Y. 216]; 32 Iowa, 324; Ketcham v. Buffalo, 14 N. Y. 356; Wartman v. Philadelphia, 33 Pa. St. 202; Smith v. Newbern, 70 N. Car. 14 [16 Am. Rep. 766]; Wade v., Newbern, 77 N. Car. 460; Lax v. Corp. of Darlington, L. R. 5 Ex. Dix. 28; 48 E. J., Q. B. 143; Jersey City v. Railroad Co., 2 Atl. Rep. 262 [40 N. J. Eq. 417]; See. 2640, Rev. Stat.; Circleville v. Neuding, 41 Ohio St. 465; Zanesville v. Fannan, 53 Ohio St. 605, 617 [42 N. E. Rep. 703]; affirmed in Zanesville v. Spoerl, 54 Ohio St. 634 [46 N. E. Rep. 1156]; Circleville v. Sohn, 59 Ohio St. 285, 306 [52 N. E. Rep. 788]; Middleport (Vil.) v. Taylor, 1 Circ. Dec. 534 (2 R. 366); Durbin v. Napoleon, (Vil.), 11 Circ. Dec. 584; Gable v. Toledo (City), 9 Circ. Dec. 63 (16 R. 515); Newark v. McDowell, 9 Circ. Dec. 260 (16 R. 556); s. c. 60 Ohio St. 599 [54 N. E. Rep. 1100]; Matthews v. Toledo, 11 Circ. Dec. 375 (21 R. 70); Hewitt v. Cleveland (City), 11 Circ. Dec. 710 (21 R. 205).
    
      M. R. Brailey, for the defendant in error.
   H URL, J.

This action is brought to reverse the judgment of the court of common pleas. The plaintiff in error was the plaintiff below, and a verdict was returned against him at the trial and judgment entered upon that verdict.

The action below was to recover for personal injuries which the plaintiff claimed he had sustained on account ot negligence of the city. He complains in his petition that on or about October 30, 1899, he was walking along the platform ot Market space, on Superior street, between Monroe street and Washington street, and that about the middle of the platlorm a set of scales had been removed which formerly stood there, leaving a hole some lour or five feet or more in depth. It is alleged that it was in the night, that he did not see the hole, and that he fell into it and was injured.

The answer is in the way ot a general denial and alleges that it the plaintiff was injured, it was on account of his own negligence.

It is complained that the verdict and judgment are against the weight of the evidence; are not sustained by sufficient evidence; that the court erred on the tidal ot the case, and especially in its charge to the jury.

While the plaintiff alleged in his petition that he was walking on the market platform at the time he fell into the hole, he testified upon the trial that this was not the fact; that he was in fact walking on the street, on Superior street, crossing the street, at the place where the scales had been, going east, and that ‘in that way he fell into the hole. The plaintiff testified that he lived somewhere in the western part of the city; that he had been on Summit street and then came upon. Monroe street to Superior street, to the western end ot Market space. There he made a small purchase, then turned down Superior street, south or east, with the intention oE going down that street and finally reaching his home in that way, but that, when he was about half way between Monroe street and Washington street, he concluded to turn off to the east and go through the opening between the platiorms of the market place, where the scales had been, and by way ot an alley which ran east and reach St. Clair street and there take a car. He turned off at this point and started across Superior street in an eastward direction, as he claims, for the purpose stated, and When he reached the platform on Market space he undertook to walk through where the scales had been and fell into the hole caused by their being taken out that day. He had three of his ribs broken and was otherwise seriously injured.

It is claimed on the part ot the city that whatever errors may have been committed by the trial court, they are not prejudicial for the reason, as it is claimed, that upon the undisputed facts in the case, the plaintiff was not entitled to recover. It is claimed that he was going where he had no right to go and using a part of the street which he had no right to use, except at his own risk, using it for his own convenience, his own purpose, that instead of keeping upon the sidewalk he walked out into the street, and that in so doing he took his own risk and if he was injured, no cause of action arose against the city.

Two decisions of the Supreme Court are cited to sustain this contention, one being Kelley v. Columbus, 41 Ohio St. 263, where the'court say in the syllabus:

“A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street.
“The owner of land is not liable for injury resulting from the unsate or dangerous condition of his premises, to persons who go upon them without invitation express or implied.
1 ‘The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the adjacent lands.”

Kelley was walking along the street in Columbus in the vicinity of the city hall, and for the purpose of answering a call of nature, he stepped ,off the sidewalk and walked across the pavement and to the east side of the building in the night season. This building was some thirty feet away from the sidewalk. He fell into an open area and received an injury. The Supreme Court held that where he fell was no part of the sidewalk, that he had no invitation to go there, and if he saw fit to use this place for that purpose, when he might have Kept on the sidewalk, he did so at his own risk, and if he was injured, there could be no recovery.

The other case relied upon is Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480]. The party in this case slipped and fell or slid into a catch-basin in the street. He was going across the street diagonally where there was no sidewalk, and the Supreme Court say, in the syllabus:

“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.”

So that under these authorities, it Nitz deliberately left the sidewalk and travelled over a part of the street not intended to be travelled upon, for his own purposes and his own convenience, the city would not be liable.

But his evidence shows that he was walking in a southerly direction upon Superior street, upon the west side of it, where there was a sidewalk, and that in the middle of the street, between Monroe street and Washington street, was a market house or market shed, which consisted of a platform with a root over it at that time. The platform is perhaps tifteen feet in width and is used by market men in the middle of the day. This market shed consisted of two parts, and midway between them was this opening for the scales, where they had been for many years, and the evidence shows that from these scales on each side there was a sidewalk to the edge of Superior street, the sidewalk running from the point where Nitz turned off to go to St. Clair street to the opening between the platforms where the scales were, extending to the edge of the opening notherly, and on the other side of the platform there was a sidewalk running to the easterly side of Superior street and ending nearly in front of the city police station, or city hall.

These scales, which were large ones, used for the purpose of weighing wagons, had a platform as long as the market platform was wide, and the platform of the'scales was about .ten feet in width; they had been used ior many years by the public ior the purposes of travel, some of the witnesses saying that hundreds of people went through there every day and night, and, according to the testimony, used as a part of the street, and there was on the easterly side ol Superior street, an alley running to St. Charles street, which was immediately opposite this opening made by the scales, so that Nitz, when he undertook to go from Superior street on its western side over to St. Clair street, was not departing from the usual route of travel, but he was in fact walking upon a sidewalk that was laid across Superior street from each side of the market house, and was undertaking to walk upon the scales which had. been used for many years by people in passing and repassing over this street.

So that, in our judgment, this case does not come within the rules of the two cases relerred to and Nitz was not a person who was'rambling or roaming about in places where he had no business to go, and therefore, if he was hurt, no liability would arise. The evidence shows, as suggested, that the alley referred to was very much used, and had been for many years, by persons walking from Superior street to St. Clair street, and it was this alley that Nitz was proposing to walk through on his way to take a car on St. Clair street. The scales were taken out at noon and the hole left without light or guard except possibly a pile of earth, and Nitz fell in that night.

The question remaining is whether tne court erred on the trial of the case, in its charge to the jury. If Nitz walked upon the street, as he claims, and in fact walked in the ordinary way where he had a right to go and where people ,were accustomed to go, he was entitled to have exercised towards him ordinary care on the part of the city in keeping its streets and alley-ways in repair, and if an excavation was made in the street, by the city, or with its knowledge and authority and negligently left without light or guard, and Nitz, without any negligence on his part, iell into it, he would be entitled to recover.

There are different portions of the charge that are complained of., And, first, on page 113 of the record, where the court said to the jury: .

‘ ‘Under the issues in this case, therefore, you must determine, first, whether the point in question at which the plaintiff claims to have been injured, was a public street ? If it was nor, but was rather merely a part of Market space, then the duty oi the city toward the plaintiff is-different from what it otherwise would be — provided you find from the testimony that he was using it as a street. If the city oi Toledo had devoted this space to market purposes, and was so using it, and not for street purposes, then it was the duty of the city to exercise ordinary care in the control of this space to prevent injury to a citizen who was using it for the purposes to which it was devoted. It is not incumbent upon the city to care ior market-spaces — market-houses—in the same manner that it is to care for its streets, and the question lor you to determine in this case is, whether the city of Toledo negledted any duty that it owed to this plaintiff in this matter? If this shed, through its extent, from Washington street to Monroe street, was so constructed that it could properly be used and was properly used only for market purposes bv the citizens generally, then a person who went upon this shed and platform merely for his own convenience — because it suited his purposes better to walk over that than it did to walk over the street and the sidewalks which are intended for the use of loot passengers, out of the market hours, when the ordinary uses of the market are not supposed to be there, and an accident happens and he falls trom the shed and suffers an injury, he takes the burden upon himself. It he is there after such a time, simply lor his own purposes, without any invitation on the part of the city, express or implied, he must suffer the consequences of any injury that happens to him as a result of his so being there.”

That portion of the charge is objected to and it is claimed that it was erroneous and misleading. There was evidence tending to show two witnesses testified that Nitz was in fact walking upon the market platform when he fell off; one witness saw him walking along and saw him fall into the hole. Another witness, atasaloon near by, testified that his attention was called to a man coming down the market shed at this time, that his attention was drawn another way lor a moment and that his little girl told him that somebody had “fallen into the scales,” and this was found to be Nitz. So the evidence was conflicting as to whether he fell in off the platform or from Superior street.

The evidence showed that this platform had been used by people generally in walking back and forth whenever they saw fit, as a portion of the street, making a very convenient place lor walking, being a broad platform with a shed over it extending from Monroe to Washington street, running down through the middle ot the street, and there were steps there, for the use of people not only during market hours but which were.used at all times, and at the opening where the scales were, there were steps down either side for the convenience of people who wished to pass Irom one platform to the other, two sets of steps.

In our opinion, if this had been used as a street lor a long time by people generally in that part of the city and by others who might come there, and if they were accustomed to walk back and forth upon this platform, in the night time and in the daytime, as the testimony showed, although this platform was built for market purposes, yet if the people were permitted to use it as a street, and if they did so use it generally as a street, and il this place where these scales were, was used as a street, the city might be liable lor taking out the scales and leaving an opening some six or seven leet deep from the top of the platform, without any guards, railing or lights, as this opening was left that night. It would be putting into the .path of travellers a new danger that was not there bet ore, and in a path that they had been permitted to use for a long period of years, and although Nitz may have gone out ot his way when he went upon the platform, although he might have walked upon the street, yet he was not a trespasser in walking upon this platform, and if the scales had been used there as a street for a long period of years with the knowledge of the city, then when he stepped otf the platform he was stepping upon what he had a right to suppose was a street and which had been used as a street for a long time, and we think that the court below was in error in charging the jury in substance that if that platform was used for market purposes and originally intended for that use only, and it Nitz was walking upon it for his own convenience, that the city would not be liable under any circumstances if it removed these scales and thus made a deep pit which Nitz fell into, and this portion of the charge may have misled the jury, Jrom the fact that the evidence was conflicting as to whether he was walking upon the street or upon the platform, and probably was prejudicial to the plaintiff upon the trial of the case.

On page 115 ot the record is a portion of the charge which is complained of. The court said to the jury:

“It he was so guilty of negligence, he cannot recover in this action, although you may find irom the testimony that the defendant, the city of Toledo, was negligent, as claimed; it the negligence of the plaintiff contributed in any degree to the bringing of this injury upon himself, there can be no recovery. ”

Prior to this passage in the charge, the court had called attention to certain things which would constitute negligence on the part of Nitz, to-wit, that if, notwithstanding the obstructions, it any were there, he walked into this bole, that would constitute negligence on his part. Ot course, negligence of that kind would contribute directly to his injury, and to that portion of the charge there could be no objection, but the court follows it up with this general instruction, that it the negligence of the plaintiff contributed in any degree to bring this injury upon himself, there can be no recovery.

This instruction, it seems to us, while it may not. have been prejudicial to the plaintiff and if it stood alone, might not be sufficient to reverse the case, is in direct conflict with the law as laid down in Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89], where the Supreme Court say, in the second paragraph of the syllabus:

“In an action for negligence, it is not error to refuse an instruction that the defendant cannot be held liable, though guilty of the negligence charged, il the negligence of the person injured contributed in any degree, or in any way to the injury ot which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause ot the injury, it does not preclude a recovery.’’

And in the opinion, the court discusses the question at considerable length, citing a number of authorities, and they hold that it is not sufficient if the negligence contributed in a remote, or perhaps in the remotest degree, to the injury. That the rule is the same as to the plaintiff in an action lor negligence that it is as to the deiendant, and the negligence to bar a recovery must have contributed in some degree directly to the injury complained oí. In Matthews v. Toledo, reported in [this case has just been affirmed by the Supreme Court] 11 Circ. Dec. 375 (21 R. 69), this court held a charge erroneous, that if plaintiff’s own negligence contributed in any degree to the bringing of this misfortune upon herself, she is not entitled to complain of the city of Toledo, although the sidewalk may have been defective and the officers of the city having those matters in charge may have been guilty of negligence in failing to repair or remedy that defect. Unless the negligence of the person injured contributes directly to, or was a proximate cause of, the injury, it does not preclude a recovery.

This instruction of the court being contrary to this express holding of the Supreme Court of the state upon this question, we must find to be erroneous, and to that extent there was error in the charge of the court.

It is complained further that the court erred in its charge to the jury on the question of notice. Aiter the court had finished its general charge, the city solicitor said to the court: ‘ T think your honor has overlooked the question of notice, either actual or constructive.” And the court said, among other things, in response to this:

‘‘It you find from the evidence in the case that the hole was left there, not by reason of any procurement of the city, or of those having charge of the matter, then the city council, or the street commissioner, or the parties who were placed in control of the street, are entitled to notice ot this detect. There is no evidence in this case that actual notice was brought to the knowledge of the street commissioner ot the existence of that hole, or of any of his employes, and belore the city could be held for the negligence ot the common council, or oi the street commissioner, or of his employes in that regard, it is necessary that the hole should have been there for such a length of time as in the exercise of ordinary prudence these officials having the matter of the protection of the streets in charge would have known oi its existence. In such cases, that is to say if this hole were there for such a length of time before the plaintiff was injured as that in the ordinary performance of their duty and the exercise ot care on their part, those having the streets in charge would have known of the defect, then the city had constructive notice knowing of this defect and having had time to correct it, would have had constructive notice, which would render the city liable, provided the plaintiff was injured without any fault on his part.”

The charge in effect instructed the jury that there was no evidence of actual notice to the street commissioner ot the existence of the hole, and that before the city could be held tor negligence it was necessary that the hole should have been there for such a length of time, etc., and prior to that the court had said to the jury:

‘‘It the citv oi Toledo through its officers entrusted with the matter of placing scales on this spot, knew of the removal of the scales and procured their removal, then, of course, the city would be held to notice of the natural results oi the removal of these scales, and it the removal ot the scales which were there by the authority of the city, necessitated the leaving ot a hole in the street, then it was the duty of the city, or of those having this matter in charge for the city, to see that it was properly guarded, so that those using the street in a proper way, might not be injured. If this hole was made there, however, and the officers of the city having the matter in charge — having the protection ot the streets in charge — or the removal ot the scales in charge, had no knowledge ot such removal, then they were entitled to reasonable notice, so they could protect this place by placing guards or in some way putting it into position so that persons liable to be injured there would be protected.

The trend of this instruction is that it is necessary that some officer of the city who had chárge of the streets, such as the street commissioner, should have had knowledge of the making of this hole or of the removal of these scales.

The undisputed facts are that Mr. Mulhenny had leased these scales Irom the city in 1896, for a certain amount per year, and that he had occupied the scales until August, 1899, a short tima* before this accident occurred, when the city council, by formal resolution, leased these scales to a man by the name of Otto and thereby terminated their relations with Mr. Mulhenny, but Mulhenny not getting out, on October 27, three days before this accident occurred, the city, through a police officer, whose duty it was to serve notices for the city, notified Mulhenny to remove his scales and give way to Otto, and within three days after, to-wit, on October 36, Mulhenny removed the scales, and after removing them went to the city auditor and notified him personally that he had removed the scales, and the city auditor, on the same day, informed Otto that the scales had .been removed and that he could move in, pursuant to his contract with the city. So that the undisputed evidence in the case in fact showed that these scales were removed by the authority and the direction of the city; Mulhenny removing them on October 30, by reason of a personal notice which he had received three days before from Officer Knapp to remove the scales and make way for Otto.

It is hard to see how the city could claim that it had no notice of the removal of these scales when they had been removed by its express authority and direction. If the city ordered the’removal of the scales it certainly had knowledge of their removal and that a hole four or five feet deep, below the level of the street, would be created. And we think the court should have instructed the jury that if this resolution was passed by the council, as the evidence shows it was, and if Mr. Mulhenny was notified by the city to take his scales out, that that would constitute notice to the city that an excavation would be exposed and left there. And, more than that, the undisputed evidence is that Mr. Kohn, the superintendent of the market, was present and saw the scales removed. It took about a day and a half to take them out, and we take it that one of the duties of the superintendent of the markets would be to see that the market place was not rendered dangerous either by obstructions or bv excavations, and that the actual knowledge and presence of the market superintendent when this hole was being made would be some notice to the city of the fact that there was an excavation there.

For these reasons, in our judgment, this instruction to the jury was misleading and errorneous under the undisputed facts of the case and may, and probably did lead the jury to conclude that inasmuch as these scales were taken out at noon and this accident happened that evening, that there was no constructive notice, and that no actual notice being shown to the street commissioner or other person having the street actually in charge, that therefore the city would not be liable for this injury, and we think, under the evidence in the case, this instruction ought not to have been given; the jury should have been charged that if the tacts were as the plaintiff claimed, that constituted notice to the city without any lurther notice to anyone. On this question of notice to a city, where it has authorized an excavation to be made, a decision oi this court, where the opinion was rendered by Judge Scribner, is in point. In Gable v. Toledo, 9 Circ. Dec. 63, the first paragraph ot the syllabus is:

“A city having authorized an excavation to be made upon a public street, which is necessarily dangerous to the public, is bound to see that such excavation is properly guarded. It is not necessary, therefore, in order to recover icr injuries received from such an excavation, leit unguarded, to show that the city had knowledge that it was being allowed to remain is a dangerous condition; that on nights previous to the accident it had been left unlighted. Testimony tending to prove such tacts is thereiore immaterial. ”

The question is discussed at some length by Judge Scribner in the opinion and the authorities cited, and it finally comes down to this: That a city cannot complain that it does not have notice of a thing which it itself directs and authorizes, for that is notice.

We find no other errors in the record, but for these to which attention has been called. The judgment of the court of common pleas will be reversed and the cause remanded for a new trial.  