Cavey v. City of Cincinnati

Hamilton Circuit Court

Cavey v. City of Cincinnati

12 Ohio C.C. (n.s.) 285, 1909 Ohio Misc. LEXIS 267

DecidedJune 19, 1909

StatusPublished

This text of 12 Ohio C.C. (n.s.) 285 (Cavey v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cavey v. City of Cincinnati, 12 Ohio C.C. (n.s.) 285, 1909 Ohio Misc. LEXIS 267 (Ohio Super. Ct. 1909).

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Opinion

Interrogatory No. 1 when strictly construed is not relevant to the issues and is misleading. It is as follows:

•“Was the sidewalk within the limits of the lines of Oregon street, at the place where the plaintiff was injured, in a reasonably safe condition for travel in the ordinary modes ? ’ ’ Answer: “Yes.” ......

This was equivalent to asking the jury whether a traveler or footman who kept within the limits of .the lines of the street 'would, be safe. No .such'issue was presented, by the pleadings. The danger lay not within the lines of, the street, but adjacent, and consisted of a precipitous retaining wall, over which a footman using the sidewalk-in the ordinary'way 'might -fall, not because within' the lines of the street, but bebause So near them that such result might and would be reasonably anticipated:

Interrogatory No. 13 is as follows:

“Was the street and, sidewalk within the limits of Oregon street, at the point where and at the time when plaintiff 'ivas [286]*286injured, dangerous under ordinary circumstances to persons using' ordinary care to-keep upon the proper path?” Answer: “No.”

Strictly speaking neither the street or sidewalk was in itself dangerous, but the nearness of the sidewalk to a steep unguarded wall made it dangerous for use in 'the ordinary mode.

The answer to interrogatory No. 14 that the city had no notice of the dangerous condition is nob material, as it existed so long that the law presumes notice.

The answers to interrogatories- 2, 5, 6, 11 and Í2 are consistent with the general verdict in favor of the plaintiff, ’and determine the essential facts in issue. It follows therefore that the court erred in rendering judgment for the defendant.

The variance between the allegation of the. petition and the proof of the location of the wall is not material- because to the ordinary observer it was a part of the sidewalk and within the limits of the street, although in fact without. The liability of a municipal corporation for not guarding against a danger so near the sidewalk is recognized in the case of Kelley v. City of Columbus, 41 O. S., 263.

Judgment reversed and judgment for plaintiff in error on the authority of Cincinnati Gas & Electric Co. v. Archdeacon, Administrator, 80 O. S., -.

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Interrogatory No. 1 when strictly construed is not relevant to the issues and is misleading. It is as follows:

•“Was the sidewalk within the limits of the lines of Oregon street, at the place where the plaintiff was injured, in a reasonably safe condition for travel in the ordinary modes ? ’ ’ Answer: “Yes.” ......

This was equivalent to asking the jury whether a traveler or footman who kept within the limits of .the lines of the street 'would, be safe. No .such'issue was presented, by the pleadings. The danger lay not within the lines of, the street, but adjacent, and consisted of a precipitous retaining wall, over which a footman using the sidewalk-in the ordinary'way 'might -fall, not because within' the lines of the street, but bebause So near them that such result might and would be reasonably anticipated:

Interrogatory No. 13 is as follows:

“Was the street and, sidewalk within the limits of Oregon street, at the point where and at the time when plaintiff 'ivas [286]*286injured, dangerous under ordinary circumstances to persons using' ordinary care to-keep upon the proper path?” Answer: “No.”

Strictly speaking neither the street or sidewalk was in itself dangerous, but the nearness of the sidewalk to a steep unguarded wall made it dangerous for use in 'the ordinary mode.

The answer to interrogatory No. 14 that the city had no notice of the dangerous condition is nob material, as it existed so long that the law presumes notice.

The answers to interrogatories- 2, 5, 6, 11 and Í2 are consistent with the general verdict in favor of the plaintiff, ’and determine the essential facts in issue. It follows therefore that the court erred in rendering judgment for the defendant.

The variance between the allegation of the. petition and the proof of the location of the wall is not material- because to the ordinary observer it was a part of the sidewalk and within the limits of the street, although in fact without. The liability of a municipal corporation for not guarding against a danger so near the sidewalk is recognized in the case of Kelley v. City of Columbus, 41 O. S., 263.

Judgment reversed and judgment for plaintiff in error on the authority of Cincinnati Gas & Electric Co. v. Archdeacon, Administrator, 80 O. S., -.

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12 Ohio C.C. (n.s.) 285, 1909 Ohio Misc. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavey-v-city-of-cincinnati-ohcircthamilton-1909.