Tillman v. Toledo

Tillman commenced an action in the court of common pleas to recover for personal injuries caused by his auto skidding and running off the Fassett street bridge in the city of Toledo, from which it fell a distance of about 50 feet. The trial resulted in a verdict and judgment in favor of the defendant.

The driveway on the bridge was wide enough for three or four cars to pass and was paved with creosote wood blocks. On each side of the roadway was a curb three inches high, and outside the curb was a sidewalk 5 feet in width. On the outer edge of the sidewalk was a light iron railing. The evidence tends to show that by reason of a heavy dew the pavement of the roadway was wet and slippery. The city denied all negligence and contended that the plaintiff was guilty of contributory negligence in operating his automobile, and in violating an ordinance of the city requiring vehicles, while crossing bridges in the city, to be kept under control and not to proceed faster than a walk.

The bill of exceptions discloses that about 7 o'clock on the morning of September 28, 1921, the plaintiff was driving his automobile easterly across the Fassett street bridge, proceeding, as he testifies, at a rate of five or six miles an hour, although some testimony shows he was going faster. He was following a small touring car, 20 or 25 feet distant, which was going at about the same rate of speed that he was proceeding. The car ahead of him slowed down suddenly and he states that in order to avoid a collision he turned his car to the left, and immediately seeing another car in front of him coming west he turned his car quickly back to the right, and applied his brakes, but the car skidded and ran over the curb, across the sidewalk, and through the railing, and plunged into the water below the bridge.

The trial court excluded evidence showing the condition of the railing along the outer edge of the sidewalk and the condition of the planks upon the sidewalk. We think the trial court was right in so holding, as it was not the duty of the city to maintain a guard rail of sufficient strength to prevent automobiles from plunging off the bridge, the railing being intended for pedestrians.

The obligation of a municipality in reference to its public ways is well stated in Drake v. City of East Cleveland, 101 Ohio St. 111, 127 N.E. 469, and that duty only requires it to keep them in a reasonably safe condition for public travel in the usual and ordinary modes. This duty would extend to the bridge involved in this litigation, and whether the duty was fulfilled was a question for the determination of the jury upon the evidence. We find no error in the charge of the court, or in the refusal to charge, and are unable to say that the finding of the jury is manifestly against the weight of the evidence.

The jury may have found under the evidence that the plaintiff himself was in fault in failing to exercise ordinary care, and may have defeated him for that reason.

There were two issues in the case, namely, negligence and contributory negligence, and the jury returned a general verdict for the defendant with nothing to indicate the processes by which the result was reached. Under the doctrine of McAllister v.Hartzell, 60 Ohio St. 69, 53 N.E. 715, the verdict and judgment cannot be disturbed, if free from error on either one of those issues.

Finding no prejudicial error, the judgment will be affirmed.

Judgment affirmed.

WILLIAMS and YOUNG, JJ., concur.