Sturzinger v. City of Sandusky

Lloyd, J. By Ms action filed in thé court of common pleas, the plaintiff in error, as plaintiff, sought to recover damages of the defendant in error, as *264 defendant, for injuries to the automobile of plaintiff occasioned by Ms colliding with a hydrant on Johnson street in the defendant city. This street is located near the southerly limits of the city, and is 33 feet wide. It is not paved or improved, other than that the middle portion thereof is covered with rolled stone; Plaintiff, who was the only witness called, stated that on the north side of a portion of this street or road is a sidewalk; that this sidewalk stops easterly of where the hydrant is located, and from this point there is no sidewalk until the next north and south street is reached; that the hydrant is located in Johnson street, about 7 feet from the north line thereof, and between where the sidewalk, if extended, would have been and the curb of Johnson street, had that street been paved; that, from where the sidewalk ended to about 6 feet beyond the hydrant, grass had grown which concealed the hydrant from view, the hydrant being about 3 feet in height; and that there was nothing to indicate the location of the hydrant. And plaintiff stated that he did not know or see that it was there, it being dark at the time of the occurrence in question, which happened about 9:30 p. m. on a night in August, 1924. Plaintiff was returning home from a pageant conducted in connection with the centennial celebration of the founding of the city, held in an athletic field adjoining Johnson street. He testifies that a great number of people were present who also were returning to their homes, many of them in automobiles, Johnson street being thereby, and by the parking of automobiles thereon, very much congested and crowded. He also testi *265 fies that at the point where the hydrant is located he turned his automobile from the stoned portion of Johnson street onto the grassy portion thereof in order to pass an automobile approaching from the east, and in so doing collided with the hydrant. At the conclusion of plaintiff’s evidence, the trial court, upon motion of defendant, directed the jury to return a verdict in favor of the defendant, and, a motion for new trial filed by plaintiff being overruled, judgment was entered on.the verdict. Plaintiff claims that the defendant was negligent in allowing the grass to grow so high as to conceal the hydrant, and in so placing it in the street without something to indicate its presence to those using the highway, and asks this court to reverse the judgment of the court of common pleas, for the alleged reasons that the court erred in granting the one and overruling the other of the above-mentioned motions. The defendant claims that, in locating and maintaining the hydrant, it was acting in a governmental capacity, and could not be held, under any circumstances, to respond in damages; that the evidence offered by plaintiff was not sufficient to establish a cause of action; and, thirdly, that plaintiff himself was guilty of negligence contributing prosimately to the injuries to his automobile. Although it may be that a municipality may locate and maintain hydrants for fire purposes upon its streets, where it is determined the reasonable purposes thereof will be best subserved, still there rests upon the municipality the correlative duty of maintaining its streets in a reasonably safe condition for travel by those entitled to use them. Muni *266 cipalities are not liable for injuries caused by tbe performance of, or the failure to perform, purely governmental functions. Tbe defendant would hot be liable to plaintiff for any damages sustained by him from tbe negligent use of tbe hydrant by members of tbe fire department when engaged in tbe work of fire protection, but it would be liable for injuries sustained by tbe negligent use thereof in furnishing water therefrom at a rental for private consumption, or for negligence of employees of tbe waterworks department in opening and flushing it for tbe purpose of purifying tbe city water. Tbe character of tbe use determines whether tbe municipality acts in a governmental or in a ministerial capacity. But we do not have that question for consideration. Tbe Injury of which plaintiff complains did not result from tbe negligent use of tbe hydrant, but because, plaintiff claims, tbe hydrant was placed where, under tbe alleged existing facts and circumstances, be bad a right to drive bis car, and was so bidden from view as to become dangerous to travelers on tbe highway. In passing, we may say that our opinion is that tbe third amended petition of plaintiff, upon which tbe action was tried, given a liberal construction, states facts from which it might be inferred that defendant bad notice of tbe alleged condition of Johnson street at tbe place in question, but it would be preferable to plead it more specifically. Without commenting further thereon, and without expressing, or intending to express, any opinion as to what tbe facts are or may be found to be, we are of tbe opinion that tbe evidence offered by plaintiff *267 was sufficient to require a submission to a jury of tbe issues involved, botb as to tbe alleged negligence of tbe defendant and tbe alleged contributory negligence of tbe plaintiff. So concluding, tbe judgment is reversed, and tbe action remanded to tbe court of common pleas for further proceedings according to law. Judgment reversed and cause remanded. Richards and Williams, JJ., concur.