Hindman v. Akron

OPINION By ROSS, PJ. The plaintiff brought suit against the city of Akron for damages, predicated upon injuries received by her when she was knocked down by an automobile driven by Thomas Howard on Albrecht avenue in the city of Akron. The record develops that Albrecht avenue is a street running eastwardly from the Canton highway, that the thoroughfare is paved with concrete upon only the north half thereof, that the other half of the street is gravel or dirt, that between extreme lines the street is sixty feet wide, that a sewer was being constructed under the north sidewalk of Albrecht avenue, and the excavated dirt for a distance of some 200 feet was thrown up and upon the paved portion of the street, and had been there for some considerable time previous to the time the plaintiff was injured, that no warning lights were maintained upon the pile of dirt and no city lights were in the immediate vicinity of the excavation, that the excavated dirt covered almost the entire portion of the street paved with concrete. The portion of the street left open for traffic varied somewhat with the extent of the dirt pile, but the evidence is clear that enough space was left between the dirt pile and high tention poles on the south side of the street to permit two automobiles to pass each other. There was no sidewalk on the south side of the street, but there was a beaten path just inside of the line of poles. Barriers were erected by the City at each end of the dirt pile, extending from the north edge of the sidewalk southwardly across the pile of dirt. The plaintiff on the night of her injury wished to pass west along the sidewalk on the north side of Albrecht avenue. Reaching the barrier across the sidewalk, she crossed the street to the south, passing the east end of the dirt pile and came to the south side of the street. Here there was no sidewalk — merely a dirt path running along just south of the line of poles. She was a deaf mute. Thomas Howard, at the same time, was driving his automobile eastwardly along the south side of Albrecht ave [29] nue. A passenger in his automobile stated the lights on the vehicle illuminated the road, some 150 feet ahead. Howard had driven some distance along the pile of dirt when he observed another automobile approaching him from the east. When the vehicles were some twenty feet away, Howard swerved his car to the south in order to give the oncoming automobile more room to pass. His passenger stated that he, the passenger, did not see the plaintiff. We do not know what Howard saw, for he did not take the stand. In any event, the automobile, driven by Howard, struck the plaintiff, knocking her down, and caused severe injury to her. The passenger states that the automobile was not going more than twenty miles an hour when it struck the plaintiff. Be that as it may, the radiator was shoved back against the engine. The car was a “Fast Four Dodge Sedan.” Now it is asserted that the pile of dirt constituted a nuisance, which, at least, was a contributing cause of the injuries suffered by the plaintiff. There is not even a scintilla of evidence in the record that such was the case. Had Howard come suddenly upon an obstruction in the street, of which he had no knowledge, and, in order to avoid damage to himself or his property, had turned away and struck and injured the plaintiff, then there would be presented a situation of an emergency, and the static element which produced it could be found by a jury to be a contributing cause to the damage which followed automatically upon the way chosen by the driver to avoid injury to himself or property. Such is not the case here. Howard had been along the same street and knew of the location of the dirt pile. He drove along it some distance the night of the injury before turning out to avoid the oncoming car. Every element of the evidence points to the conclusion that the plaintiff suffered injuries occasioned by the negligence of Howard in the operation of his automobile. Much is made of the fact that there were not lights upon the pile of dirt, or street lights in the vicinity. This again is of no avail, since it is perfectly apparent that Howard knew of the obstruction in the street and had been/ avoiding it for some time before the collision with the plaintiff. There undoubtedly would have been no different solution had the area been brilliantly lighted. As far as the plaintiff is concerned she must have had abundant light upon her pathway from the two approaching vehicles. She evidently deemed herself to be in a place of safety, and would have been, had it not been that Howard chose to go so far to the south. This court held in Flamm v Coney Island Co., 49 Oh Ap 122, that the existence of negligence and injury alone were not sufficient to establish liability, but that the proximate causal connection between the two must be proved as an element of the case of the plaintiff. So here, it is apparent that although the pile of dirt be considered a nuisance, no causal connection is shown between such obstruction and the injuries suffered by the plaintiff. The case of Sobolovitz v Lubric Oil Co., 107 Oh St 204, cited in the Flamm case, is also here pertinent. See also: Railway Company v Staley, 41 Oh St 118. In City of Hamilton v Dilley, 120 Oh St 127, the syllabus is: “1. The duty imposed upon municipalities in Ohio by §3714, GC, to keep its streets free from nuisance, is an exception to the rule of common láw that no liability attaches to a municipality for negligence in the discharge of a governmental function. “2. It is the province of the court to define a nuisance and the province of the jury to determine whether the circumstances of the particular case come within the definition of a nuisance.” The pile of dirt itself could come under no proper definition of nuisance. The City was engaged in the construction of the sewer proceeding under a governmental function. The fail [30] ure to light the pile of dirt could only be effective to create a nuisance, if such failure caused those approaching it to be unaware of its existence.' An unlighted obstruction could only be a nuisance when persons affected were unaware of its presence and extent. The City, therefore, committed no unlawful act as far as the parties here involved were concerned. The case of City of Mingo Junction v Sheline, Admx., 130 Oh. St 34, is in point. See also: Mossman, etc. v City of Cincinnati, 10 OO 335; Galluppi, etc. v Youngstown, 55 Oh Ap 331; 28 O. Jur., Municipal Corporations, §§618 and 624. It is apparent, -that, giving the contention of the plaintiff its farthest implication, the pile of dirt could be but the very remote cause of her injuries. The speed of Howard’s automobile — his limited lights — his violation of the rules laid down in Skinner v Pensylvania Rd. Co., 127 Oh St 69, and Gumley, Admr. v Cowman, 129 Oh St 36, the failure of the driver of the vehicle proceeding in the opposite direction to concede Howard sufficient space to pass — are intervening causes which definitely forbid any conclusion that the pile of dirt could be the proximate cause of plaintiff’s injuries. The judgment is reversed, and judgment will be entered here for the defendant, as the trial court should have done in response to the motion of the defendant at the conclusion of the evidence. HAMILTON, J, concurs.