Opinion
No. 35102
Decided November 20, 1957.
Municipal corporations — Duty to keep sidewalks in repair and free from nuisance — Section 723.01, Revised Code — Separation of and variation in heights of concrete slabs of sidewalk.
APPEAL from the Court of Appeals for Lucas County.
This action was brought to recover for personal injuries suffered by plaintiff while she was walking on a public sidewalk of the defendant city, with which plaintiff was familiar, having used it many times. She claims her injuries were the result of a fall caused by a defect in the sidewalk.
It appears from the record that the accident occurred about noon on a bright sunny day. The defect complained of consisted of a separation or crack, running parallel with the curb, between two slabs of concrete about five feet long. The crack was approximately from one and one-half to one and three-fourths inches wide, and there was a difference in elevation of the two slabs along the length thereof from three-eights of an inch at one end to one-half inch at the other end. The depth of the crack tapered from three and one-half inches at the alley curb line to one-half inch at the other end.
Defendant's motion for a directed verdict was overruled and the case submitted to the jury, resulting in a verdict and judgment for plaintiff.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. William K. Fenton and Mr. John W. Potter, for appellee.
Mr. Charles T. Lawton, director of law, and Mr. William D. Driscoll, for appellant.
Among the errors assigned are that there was prejudicial error in the court's charge to the jury and that the court committed prejudicial error in refusing a special instruction.
The claimed error in regard to the trial court's definition of "nuisance" given in answer to an inquiry from the jury raises an intriguing question which was the basis of the court's allowance of the motion to certify. However, in the light of the court's conclusion that the defendant was entitled to a directed verdict, it is not necessary to decide that question in this case or to pass on the other assigned errors.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for defendant on authority of Kimball v. City of Cincinnati, 160 Ohio St. 370, 116 N.E.2d 708.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.