City of Fremont v. Dunlap ( 1903 )

In this case the question is raised on the record and argued, that the city, if it failed at all in its duty, merely failed to exercise a governmental power or duty, and that for such failure it is not liable under any circumstances. But assuming for the purposes of this case that the city might be liable for an injury resulting from the alleged nonfeasance, still it could not be held liable before reasonable notice of the unsafe condition of the street had been brought home to the corporation (Cireleville v. Sohn, 59 Ohio St., 285). It does not appear that actual notice was given to this corporation or its officers; but it is claimed that under the circumstances the city ought to have known that the billboard was dangerous and threatening to people passing along the street, and therefore that the city is chargeable with constructive notice of the alleged nuisance. In those jurisdictions where municipal corporations are held liable to individuals for negligence in respect to keeping its streets open, in repair and free from nuisance, it is held that while the corporation is not an insurer of the safety of its streets, alleys' and sidewalks, it will be held liable for injuries to persons resulting from neglect of the corporation to keep its ways in a reasonably safe condition for travel in the ordinary modes under ordinary circumstances. In Chase v. Cleveland, 44 Ohio St., 505, it is said in the opinion:

“We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the.lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision and control of the streets, and shall cause them to be kept open and in repair, and free from nuisance. This requires a reasonable vigilance, in view of all the surroundings, and does not exact that which is impracticable. When the authorities have done that" which is reasonable in this regard they have, discharged the entire obligation imposed by the law. They are not bound to use all possible vigilance in inspection or in obtaining information.”

Also in Village v. Kallagher, 52 Ohio St., 183, it is held that a municipal-corporation “is not bound to anticipate improbable or unprecedented events and provide against their possible results.”

Under tbe law as thus stated, and iipon the undisputed facts of this ease, we do not think that the defendant in error has shown a right to recover against the plaintiff in' error. It is not claimed that the city had actual knowledge of the existence of the billboard and of the danger to the public therefrom. Constructive notice is claimed from the fact that it was loose and stood leaning against a building, in an alley and near to the street. If it stood there six or eight months, as claimed by the defendant in error, it does not appear to have been such a permanent inconvenience or obstruction, or that it was such a threatening danger as to have attracted much; if any, attention, or to have caused any alarm, or to have induced any complaint to the officers of the city. It is perfectly plain that under ordinary circumstances it was not dangerous, nor in any serious sense an obstruction. If the billboard was as large and heavy as the plaintiff claims, it could not have been expected to be thrown out into the street with the force and violence claimed by a light breeze or any ordinary wind. The city was not bound to interfere with private rights to prevent an “improbable” result, or one which in ordinary experience might not have been foreseen. In short, upon the undisputed facts, it is palpable that the city was not guilty of want of ordinary care.

‘ The judgment of the circuit court and that of the court of common pleas are

Reversed and judgment for plaintiff in error.