Berdan v. Brownlee

4 Ohio Cir. Dec. 8

• Court: Lucas Circuit Court
• Decided: January 15, 1893
• Status: Published

Opinion

On May 22,1890, and long before and-since Berdan & Co. (plaintiffs in error) carried on a wholesale grocery business in a building fronting on St. Clair street in the city of Toledo, a street 66 feet wide with a double track street railway in the centre, and a stone walk on each side 15 feet wide, the street and walks being much used by the public; the building extending back from the street to an alley in the rear and having a door also opening on the alley. They received at and shipped from their said building a large amount of grocer’s stock in boxes, packages and barrels, over said walk on St. Clair street.

To haul the goods, they employed drays which were backed up to the curb stone with the rear of their beds projecting over the outer part of the sidewalk about a foot, and about 20 inches above it. Across the rear of the dray bed was fastened a rod over which hooked irons whiph formed the outer end of the side pieces of a “skid” which was formed of two wooden bars about two by four inches wide and twelve feet long, and 20 inches apart, and were held parallel to each other by wooden cross-pieces, the other end of which -“skid” rested upon an “incline,” which was about four inches thick on the edge next to the door sill against which it lay, and ran to a thin edge about 3^ feet on the walk outwardly from the door sill, said incline being about 7£ feet wide and the inner end of the skid, when in position for loading and unloading goods from a dray, coming up to within about three feet of the door sill, thus forming an obstruction to those passing on that sidewalk entirely across the walk, except a three foot space over said incline around the inner end of the skid.

About one o’clock p. m. of said day, which was bright and pleasant, the skid was in said position, hooked on to the back end of a dray loaded with barrels of sugar, which was being unloaded and rolled down the skid into the building. Boxes and bales of goods were piled three or four feet high upon said walk on each edge thereof and for several feet on both sides of the skid and coming up to within 3J to 5 feet of the skid, in such manner as to leave a clear space three or four feet wide about the middle of the walk.

After two or three of said barrels had been unloaded, it became necessary to swing the inner end of the skid around towards the north (to the right when facing the building) partly off said incline so to as allow a hand truck loaded with goods to pass from the walk south of the skid up said incline to the building. An employe of Berdan & Co. had thus swung the skid around, and the truck had passed in’, when a lady came along said walk from the south and started to go around the inner end of the skid and across the incline, but turned when she reached the end of the skid and went back. The said employe thereupon being on the south of the skid, immediately stepped across to the north side of it, turned around, bent over and took hold of the skid to readjust it to the dray in order that the unloading might proceed, and at that instant the defendant in error, a business man in Toledo for many years, 37 years of age, ■with health and faculties unimpaired, came along said walk from the north unobserved by said employe, and glancing at the dray and doorway, but without pausing, or looking at either end of the skid, stepped upon it near where said employe then had hold of it, and by reason of its outer and northerly rail not being supported on the dray, on account of its being swung to the north as aforesaid, it tipped, and the defendant in error fell to the walk and sustained a severe injury to his elbow. The position of the skid, and that one rail so as aforesaid unhooked, could have been seen by him plainly had he looked at it.

Held, by the circuit court, that Berdan & Co. had a right to the reasonable use of the sidewalk and said skid for the purpose of receiving and shipping goods-at and from their said store, and that, while in the careful and reasonable use of the same, they might lawfully obstruct the walk temporarily, and that persons using the walk must either wait until such temporary hindrance was removed or otherwise avoid it; or, if with reasonable care they could pass over, they must exercise such reasonable care in choosing the manner of passing, and in the act of passing.

Held, also, that a verdict against the plaintiffs in error when the facts as-aforesaid stated are undisputed, is not warranted by the evidence, and that the judgment should be reversed and the verdict set aside and the cause remanded to the court of common pleas for a new trial.