
    No. 701
    WOOSTER (City) v. ARBENZ
    No. 19914.
    Supreme Court
    On motion to certify.
    Dock. June 21, 1926;
    4 Abs. 404.
    798. MUNICIPAL CORPORATIONS — Is the repair of streets by a municipal corporation, as a matter of .law, work in its private or proprietary capacity, and does the negligence therefore of an employee in repairing a street subject to the city to liability for damages resulting from such negligence?
    Attorneys — O. D. Kaufman, B. G. Hay for City; Critehfield & Etling for Arbenz; all of Wooster.
   This action was brought by Harry Arbenz in the Wayne Common Pleas against the city of Wooster for personal injuries alleged to be caused by negligence of an employee of the city while repairing a street.

It appears that Arbenz was injured by an employee’s alleged negligence in driving a truck while hauling dirt to repair a street. The city filed an answer to the petition denying liability and setting up the defense of contributory negligence to which answer no reply was filed.

The judgment of the Common Pleas rendered on motion for a directed verdict in favor of the city was reversed by the Court of Appeals.

The city in the Supreme Court contends:

1. That the duty of keeping the streets in repair is a governmental function for the benefit of the public and not done in its private or proprietary capacity and that it is therefore not liable for any damages arising from negligence of its employees in the prosecution of such work.

2. That the city is entitled to judgment because Arbenz failed to file a reply to the answer filed by the city setting up contributory negligence.  