City of Elyria v. Meacham

KINKADE, J.

1. A railroad company, while its property is in the exclusive possession, control and management of the Federal Government, is not responsible for an injury suffered by a third person arising out of negligence in the maintenance, management or operation of the railroad property, even though the defect in the road bed or rolling stock, which produces the injury, existed when the property was taken over by the Government.

2. Section 8874, General Code, authorizes a city to place piers in the street to support an overhead railroad bridge when effecting a separation of the grade of the street and the grade of the steam railroad tracks which cross the street. Piers so placed in the street by order of the city council do not constitute a nuisance.

3. Where the safety and convenience of public travel upon any street necessitates such separation of grades, the railroad company and the city acting in good faith and upon the advice of competent civil engineers, may determine the character of the bridge or structure to carry the elevated railroad tracks. And when the structure, completed according to the plans and specifications agreed upon and adopted by the city and the railroad company, leaves ample clear space for all public travel upon the street, it is error for a trial court in an action brought by one who has suffered an injury on the street thus spanned by an overhead bridge, to charge the jury that the question whether the piers in the street constitute a nuisance is one for the jury to decide.

Judgment reversed.

Jones, Matthias and Robinson, JJ., concur. Day, J., concurs in proposition one of the syllabus. Allen, J., not participating.