Summary
In Eichorn, supra, the Supreme Court of Ohio set forth the rule that "[o]rdinarily, the duty to keep streets, including sidewalks, open, in repair and free from nuisance rests upon a municipality and not upon the abutting owners."
Summary of this case from Dysart v. Estate of DysartOpinion
No. 33542
Decided February 17, 1954.
Negligence — Pedestrian injured by defective condition of sidewalk — Abutting property owner liable, when — Defect created, negligently maintained or permitted by abutting owner.
An owner of property abutting on a public street is not liable for injuries to pedestrians resulting from defects in the abutting portion of such street unless such defects are created or negligently maintained or permitted to exist by such owner for his own private use or benefit.
APPEAL from the Court of Appeals for Mahoning county.
The amended petition in this cause alleges that in May 1950 defendant, appellant herein, undertook to remodel its place of business on West Federal street in Youngstown; and that in making the alteration and repair of the premises, the defendant, through its agents and servants, caused to be hauled over the sidewalk and into its place of business equipment, machinery and building materials, thereby damaging such sidewalk by causing cracks and holes in the same and creating a dangerous hazardous condition for pedestrians using such sidewalk.
The amended petition alleges further that on July 15, 1950, while plaintiff was walking on the sidewalk in question, in front of defendant's place of business, she stepped into rough depressions and elevations and fell against a parking meter and upon the sidewalk, causing severe injuries to herself as the resut of the negigence of the defendant with reference to the condition of such sidewak. She prays for recovery of damages from the defendant on account of such injuries.
Defendant in its answer admits that repairs were being made on its premises during the period in question, and that plaintiff was walking on West Federal street near its place of business, but for want of information of other facts denies generally the other allegations of the amended petition.
Upon the trial of the case there was testimony by three pedestrians as to the disrepair of the cement sidewalk in front of defendant's premises. These witnesses observed unloading and delivery of materials near that portion of the sidewalk, two of them observed trucks backing upon and over the sidewalk while being unloaded, one of them noticed a concrete mixer resting on the sidewalk, and all three testified that such sidewalk was cracked in places. They did not, however, see the trucks break or crack the sidewalk.
There was no evidence as to the ownership of the trucks or the materials deposited in front of the premises of the defendant, or by whom such owners were employed. There was no evidence as to any contractual relationship between the truck owners and the defendant as to the performance of the remodeling work. There was no evidence that any truck or trucks broke the sidewalk or that the sidewalk was broken during the repair operation. Neither was there any evidence as to the size of the cracks in the sidewalks, outside of photographs offered in evidence, or as to how long the cracks in the sidewalk had existed before the date of the accident.
At the close of plaintiff's evidence the trial court sustained defendant's motion for a directed verdict. Judgment was entered on the verdict and a motion for new trial overruled.
On appeal to the Court of Appeals on questions of law, that court reversed the judgment of the Court of Common Pleas and remanded the cause to the latter court for a new trial.
The cause is now in this court on appeal by reason of the allowance of a motion to certify the record.
Mr. M.A. Del Bene, for appellee.
Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellant.
Unless otherwise shown by evidence, a sidewalk on a public street is presumed to be within the limits of the public street and under the control of the municipality or public authority. A municipality has certain duties to the public to maintain such sidewalks in repair and free from nuisance. An abutting owner is not responsibe for the disrepair of a sidewalk in front of his premises unless its condition is brought about by his wrongful conduct.
Ordinarily, the duty to keep streets, including sidewalks, open, in repair and free from nuisance rests upon a municipality and not upon the abutting owners ( Wilhelm v. City of Defiance, 58 Ohio St. 56, 50 N.E. 18, 65 Am. St. Rep., 745, 40 L.R.A., 294). Owners of property abutting on a public street are not liable for injuries to pedestrians resulting from defects in such streets unless such defects are created or negligently permitted to exist by such owners for their own private use or benefit, such as an open trap door in a sidewalk ( Herron v. City of Youngstown, 136 Ohio St. 190, 24 N.E.2d 708).
Was there any evidence to support a finding of positive acts of wrongful conduct on the part of the defendant resulting in the disrepair of the sidewalk? Negligent conduct on the part of an abutting property owner as to the existence of a defective sidewalk in front of his property will not be presumed but must be proven by affirmative evidence. Such evidence must necessarily show that the use of the sidewalk which brought about its disrepair was expressly or impliedly authorized by such owner. Here there was no showing that the truck owner or owners using the sidewalk were or were not employees of the defendant. In the absence of any such proof as to the relationship of the truck owners and the defendant, there was no proof of liability on the part of the defendant, and the trial court properly directed a verdict for it.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.