Messe v. City of Massillon ( 1935 )

OPINION

By LEMERT, PJ.

The record before us discloses the facts as hereinbefore narrated, and also shows that the cement part of said sidewalk, which was boarded in during said excavation, was not used nor subject to use by the public at the time this injury to plaintiff in error occurred, but that the public was permitted to use only the board sidewalk constructed on Lincoln Way. The defendant in error, the City of Massillon, had - nothing whatever to do in any. way with the construction or excavating that was going on inside the board fence enclosure and where plaintiff in error was employed. That the cement portion of said sidewalk was not then being used by the public and was not under the control of the City of Massillon.

The evidence in the record does not show any defect in said cement sidewalk, nor does it show any act whatever of the defendant in error which contributed in any way to the plaintiff in error’s injuries. There is nothing in the record to show that the defendant in error knew of the dangerous condition or that they did any act in any way that contributed to plaintiff in error’s injuries. The record discloses that the plaintiff in error was employed by the contractors to assist in said excavation and was not in the use of any street or thoroughfare at the time of his being injured. That being so, there is clearly no liability on the part of the City of Massillon and the finding and judgment of the court below will be and the same is hereby affirmed.

Exceptions may be noted.

MONTGOMERY and SHERICK, JJ, concur.