Kittredge v. Cincinnati (City)

18 Ohio C.C. Dec. 100, 6 Ohio C.C. (n.s.) 646, 1905 Ohio Misc. LEXIS 282

• Court: Hamilton Circuit Court
• Decided: May 27, 1905
• Status: Published

Opinion

GIFFEN, J.

The plaintiff in error in his original petition alleged that his horse, without the knowledge of plaintiff and without any negligence on his part, escaped from pasture, and while on a public street fell into a large hole in the street whereby he was killed; that the defect in the street existed for more than three weeks prior to the happening of the injury; that the city had notice of the same for more than two weeks but failed to repair the same or place any protection around it.

The defendant, by answer, denied all negligence on its part and charged contributory negligence upon the plaintiff. The jury returned a verdict in favor of, the defendant upon which judgment was entered.

It is competent to prove by one acquainted with the habits and dispositions of horses that the class to which the plaintiff’s belonged was •accustomed to jump over fences or break out of pasture. The court therefore did not err in receiving the testimony of the witness, Morris.

The three special charges given by the court at the request of the defendant state the law correct y and were properly given.

The first special charge requested by the plaintiff makes the. ques- ■ tion of notice of the defect to the city depend entirely upon the existence of the same for a period of three weeks. In certain parts of the city densely populated and where streets are frequently used, the existence of a defect for a period of three days might be sufficient to charge the city with notice of a defect, while on the other hand, in another part of the city where the streets are seldom used, the existence of the defect for a*period of thirty days might not be sufficient to charge the city with notice of the same. The question necessarily depends upon the circumstances of each particular case. In this ease the defect existed in that part of the street which was seldom used, and at a point near the edge of the traveled way which, together with other facts, tended to rebut any presumption arising from lapse of time, and the question of notice was properly left to the jury.

The second special charge leaves out of consideration entirely the question of notice, and was properly refused.

The third special instruction, although providing for notice either actual or constructive, ’ fails to require that the notice be received in time to make the ' necessary repair or otherwise provide against accident;

The fourth special charge is defective in limiting the kind of fence the plaintiff was required to maintain around his pasture to one reasonably sufficient to restrain stock, such as' that of the plaintiff. Reasonably or tolerably sufficient is not the nature of care required but it is such as would be exercised by an ordinarily prudent person under like circumstances.

The géneral charge of the court on the question of notice through a police officer is more favorable to the plaintiff than would now be sanctioned under the case of Cleveland v. Payne, 72 Ohio St. 347, since the trial of this case and reported on May 22, 1905.

The verdict was not against the weight of the evidence, and the judgment will be affirmed.

Jelke and Swing, JJ., concur.