Summary
In Imfeld v. Hamilton, 166 Ohio St. 11, plaintiff based his cause of action on the manner in which a traffic signal was operated, claiming that the street was not open and free from nuisance, as required by Section 723.01, Revised Code.
Summary of this case from Fankhauser v. MansfieldOpinion
No. 34770
Decided December 12, 1956.
Municipal corporations — Installation and operation of traffic control signals — Manner of regulating traffic — Nonliability in exercise of governmental function — Section 723.01, Revised Code.
APPEAL from the Court of Appeals for Butler County.
This is an action against the city of Hamilton to recover damages for the death of plaintiff's decedent resulting from decedent's being struck by a motor vehicle while he was crossing a street at an intersection in the defendant city, with the green traffic light in his favor.
A demurrer to the amended petition for the reason that the petition does not state facts which show a cause of action was sustained by the trial court, and, plaintiff not desiring to plead further, the amended petition was dismissed.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Imfeld Imfeld, for appellant.
Mr. E. Hjalmar Persson, director of law, for appellee.
Plaintiff bases his cause of action on the manner in which the traffic signal was operated, claiming the street was not open and free from nuisance as required by Section 723.01, Revised Code.
It is alleged in the amended petition that traffic at the intersection involved, which was a "T" type, was governed by a signal device erected and operated by the defendant city, and that by its operation the signal device allowed vehicular traffic to proceed in a northerly direction at all times and also allowed pedestrian traffic to cross the same street from west to east with a green signal in its favor, thereby placing the pedestrian in an extrahazardous and dangerous position — that of assuming he had the right of way to cross, whereas in fact he could not safely cross because of the green arrow allowing vehicular traffic to cross the crosswalk at all times. There is no allegation or claim that the signal device was not functioning in the manner in which it was designed to function.
Plaintiff's allegations as to the functioning of the traffic signal will not support an action against the city to recover damages for the death of decedent. The judgment of the Court of Appeals is affirmed on authority of Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, 161 A.L.R., 1391.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.