Lead Opinion
1 — 1
In the Court of Appeals, the defendants predicated their assignments of error on the argument that the defect in the crosswalk, as alleged by plaintiff, was only a minor imperfection and, as such, was not actionable as a matter of law by plaintiff. In support of that argument, defendants cited prior Ohio case law, emphasizing Kimball v. Cincinnati (1953),
The opinion in Kimball, and the case law that followed, applied a standard which involved the degree or extent of the sidewalk variation or imperfection which as a matter of law would not present a jury question on the issue of negligence.
The plaintiff, in the Court of Appeals, as well as here, argued that the prior Ohio cases do not set forth or establish an inflexible rule that a defect of less than two inches is per se insubstantial, and therefore not actionable as a matter of law. In this regard, plaintiff points out that these opinions noted that each case must be determined in light of its own particular circumstances. Plaintiff refers to the language of the court in Kimball, supra, at page 373, as follows:
*322 “[W]e do not propose to adopt any maximum variation in height as the boundary line between a condition not due to negligence and one which should be submitted to a jury.”
However, it should be noted that this court, in most of the subsequent cases as noted, again referred to the insubstan-tiality of the defect in the sidewalk in terms of inches.
A variable, but temporary, course was charted by a majority of this court when, in Griffin v. Cincinnati (1954),
“Where an abrupt raise of a section over an adjoining section of a cracked and broken concrete sidewalk in the downtown section of a city is as high as two inches, and where there is a triangular hole in the comer of a section adjacent to such abrupt raise, it can not be held as a matter of law that such defects are so slight that danger to a pedestrian from their existence may not be reasonably anticipated.”
There was a strong dissent in Griffin, stating, at page 244, that there had not been evidence to “justify, without a substantial speculation as to the nature and extent of those defects, a conclusion by reasonable minds that that sidewalk, lighted as it was, was not ‘in a reasonably safe condition for travel’ on foot***.”
Griffin, supra, was expressly overruled by a majority of this court in Gallagher v. Toledo, supra, where, in his concurring opinion, Justice Bell stated:
“In the O’Brien case this court unanimously followed the unanimous decision in the Kimball case holding, in effect, that to impose liability on a municipality for a defect in a sidewalk, that defect must be a substantial and not a slight one.”
In all the aforestated cases relative to municipal sidewalks, the basic underlying premise was that municipalities are not insurers of the safety of those pedestrians who use municipal walkways. However, over the years there have been differing expressions concerning the rationality of the application of the principle of “negligence by ruler” in order to determine the substantialness of a defect which would give rise to a jury issue. Whether a difference in elevation between adjoining sections of a public sidewalk of two inches or less is an insignificant, trivial and unsubstantial condition, which is not action
The basic purpose of the rule, that of narrowing the scope of the municipality’s liability in sidewalk defect cases may well have as much merit today as it did when Kimball was pronounced. As was stated in the annotation entitled, Degree of inequality in sidewalk which makes question for jury or for court, as to municipality’s liability,
“ ‘***a municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions or differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby.’ ”
Whether this so-called Kimball rule might be abandoned or revised on another day, we decline to do so within the context of this case. We need not disturb the basic rule in order to reverse the Court of Appeals here in that we determine that this case may be reasonably differentiated from Kimball and its progeny which dealt only with a difference in the elevation of slabs of a sidewalk, and conclude that jury questions are
It is our determination that the circumstances surrounding the excavation occasioning Mrs. Cash’s fall do not make that defect insubstantial as a matter of law. The circumstances found here may be reasonably distinguished from the cases establishing the general rule of insubstantialness as found in Kimball and other cited cases. Here, the circumstances presented a situation upon which reasonable minds could differ as to whether the crosswalk was reasonably safe for pedestrians in the usual mode of travel. There are ample circumstances presented here to cause reasonable minds to differ as to the existence of a certain danger for pedestrian travel of such crosswalk, so we conclude that the trial court properly left the question of negligence and nuisance to the jury. Two trial judges, at different times, both concluded that the facts permitted reasonable minds to differ on the question of substantiality of the defect. In accord with this belief, the motions for summary judgment, directed verdict, and judgment notwithstanding the verdict were overruled in turn.
We believe that the defect as found in this crosswalk at a busy downtown intersection of one of the state’s largest cities necessitates a different stance on what the legal significance of such a defect should be. A pedestrian who approaches such an intersection necessarily has his attention diverted by traffic signal lights, by surrounding vehicular traffic, and by other pedestrian traffic along the same walkway. These conditions would tend to increase the danger of such a defect in this location. The trial court correctly left to the jury the factual issue of Mrs. Cash’s reasonable anticipation of these conditions.
Further, the time of day during which Mrs. Cash encountered the defect would reasonably increase the difficulties of approaching such a defect. She tripped in the depression shortly after 11:30 a.m., in the midst of a lunch hour crowd. The many pedestrians which necessarily passed through this crosswalk would likely obstruct other pedestrians’ views of this depression. Again, the reasonable anticipation of Mrs. Cash of this aggravating condition was an issue properly left to the jury.
The jury had evidence upon which to base their determination as to whether the defect constituted negligence. Likewise, the court had evidence upon which to base its consideration and conclusion that reasonable minds could differ upon all issues presented.
When the evidence is viewed most favorably to the plaintiff, it supports the conclusion that reasonable minds could differ as to the defendants’ negligence. In light of all the circumstances, the Court of Appeals erred in reversing the judgment of the Court of Common Pleas in this action.
Based on all the foregoing, we hold that where the evidence is viewed most favorably to the plaintiff, it supports the conclusion as reached by the trial court, that reasonable minds might differ as to the substantiality of this defect in light of all the surrounding circumstances of the matter.
II.
As to the issue of the negligence of the plaintiff in not keeping a proper lookout under all the circumstances, and thence falling when she stepped into the depression in the crosswalk, the trial court did not find Mrs. Cash negligent as a matter of law. The trial court properly submitted this question to the jury as to whether walking with the crowd in the manner she did was unreasonable under all the circumstances..
The defendants argue that Mrs. Cash was contributorily negligent for following the crowd too closely and failing to notice the defect in the street. It is uncontroverted that Mrs. Cash did not see the defect before tripping.
The facts established that pedestrian traffic was quite heavy at the intersection of Fifth and Vine Streets, that the plaintiff was behind three rows of pedestrians and directly behind a row of four men taller than her, that she had not seen the depression, and that she looked up and down as she crossed the street.
Reflecting on a pedestrian’s duty, this court, in Grossnic
“A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward * * *. ”
The court further held that where a defect is unseen by a plaintiff which results in injury, an issue is presented for the jury as to whether the plaintiff exercised that concern for his own safety which an ordinarily prudent person would employ under similar circumstances. Thus, the affirmative defense of contributory negligence was specifically held to be an issue for the jury. Grossnickle, at 103.
Additionally, this court, in Griffin, supra, stated, at 238, as follows:
“A pedestrian is required to use his senses to avoid injury while walking on a sidewalk, but this does not mean that he is required as a matter of law to keep his eyes upon the sidewalk at all times. It may be necessary to keep a lookout for traffic and other pedestrians to avoid collision.”
We hold that the law of Grossnickle and Griffin is applicable here, and whether Mrs. Cash should have been maintaining more distance between herself and the other pedestrians, whether she was under the circumstances paying due heed to where she was stepping, and other questions as to whether she was negligent in the manner in which she was walking, were all questions for the jury in this cause.
The well established rule in regard to contributory negligence is that where reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. Hamden Lodge No. 517 v. Ohio Fuel Gas Co. (1934),
It is clear that reasonable minds could, and did in fact, differ as to whether Mrs. Cash was contributorily negligent. Therefore, the issue was properly left to the jury by the trial court, and the Court of Appeals erred in reversing that decision.
Based on all the foregoing, the judgment of the Court of Appeals is reversed.
Judgment reversed.
Notes
The variation in heights in adjacent sections of sidewalk in Kimball was one-half to three-fourths of an inch. In later cases, where the court held the defect to be inconsequential, the variations ranged up to two inches.
See dissenting opinions in Helms, supra; dissent in Harris v. Detroit (1962),
Smith v. United Properties, Inc. [and Schilliger v. Graceland Shoppers Mart, Inc.] (1965),
Concurrence Opinion
concurring. Although I concur in the judgment and in part in the syllabus, I must travel a slightly different road to reach that result which I feel is directly inconsistent with Gallagher v. Toledo (1959),
Considerable reliance is placed upon Griffin v. Cincinnati (1954),
At all times it must be borne in mind that the basic issue presented is whether the defect in the crosswalk is so substantial that reasonable minds could conclude that such defect made the crosswalk unsafe for travel in the usual and ordinary modes. This is the duty of the city imposed by R. C. 723.01 to keep the streets and sidewalks “open, in repair, and free from nuisance.” As this court stated in the fourth paragraph of the syllabus of Taylor v. Cincinnati (1944),
Although there has been some criticism of what has been termed “negligence by ruler,” almost every state which has considered liability resulting from street or sidewalk defects has adopted to one degree or another a rule which could be termed “negligence by ruler.” See Annotation, Degree of inequality in sidewalk which makes question for jury or for court, as to municipality’s liability,
The necessity of the much criticized “negligence-by-ruler” determination of negligence is readily apparent.
Although the judgment reached by this court today is proper, such result can be reached only if some, but not all, of the prior decisions of this court be at least modified. In Kimball v. Cincinnati (1953),
“Where an abrupt raise of a section over an adjoining section of a cracked and broken concrete sidewalk in the downtown section of a city is as high as two inches, and where there is a triangular hole in the corner of a section adjacent to such abrupt raise, it can not be held as a matter of law that such defects are so slight that danger to a pedestrian from their existence may not be reasonably anticipated.”
Thus, at that time, there was the Kimball rule that a three-fourths inch difference in elevation, coupled with a crumbled sidewalk, is not a substantial defect, and the Griffin rule that a difference in elevation between adjoining slabs of two inches, coupled with an adjacent triangular hole, was a defect of such a nature that reasonable minds could reach different conclusions as to whether it was sufficiently substantial to create an unsafe condition for travel in ordinary modes in the downtown section of a city. Kimball and Griffin are not necessarily incompatible.
However, Griffin was repudiated and in effect overruled by the majority of the court in Gallagher v. Toledo, supra (
In other words, Griffin is compatible with Kimball and with Glaser and the intervening cases, but is incompatible with most of the subsequent cases. The majority herein relies heavily upon Griffin. Following Griffin necessitates a reversal of
Reasonable minds could conclude that the defect in question was substantial only if the prior rule of law established by the many decisions of this court, except Griffin, is somewhat modified. Thus, an appropriate holding would be that, where the sole claimed defect is a difference in the elevation of all or part of two adjoining slabs of a sidewalk, reasonable minds could not conclude that the defect is substantial if the difference in elevation be two inches or less. However, reasonable minds could conclude that a 12 to 14-inch wide, one and one-half inch deep trench extending the width of a crosswalk in a heavily pedestrian-traveled downtown section of a city constitutes a substantial defect, that is, reasonable minds could conclude that the crosswalk under those circumstances is not reasonably safe but is dangerous for travel by pedestrians.
Accordingly, the first paragraph of the syllabus should indicate that Gallagher v. Toledo, supra, is overruled insofar as it overruled Griffin; that Kimball, OBrien, Amos and Kindle are modified to the extent they are inconsistent herewith; and that Griffin v. Cincinnati, supra, is approved and followed.
Full consideration was given to the issue in Kimball v. Cincinnati (1953),
It would be appropriate for this court to approve and follow Griffin, while at the same time overruling Gallagher which overruled Griffin. At the same time, O’Brien, Buckley, Amos and Kindle must be at least questioned as must many succeeding cases. The same result may well have been reached in many of them because of the issue of contributory negligence.
In other words, the two-inch rule should be limited to differences in elevations between adjoining slabs of a sidewalk. Obviously, there are elevations greater than two inches which, as a matter of law, do not constitute substantial defects. An example would be the curb or a step or steps in a sidewalk.
On the other hand, when we are concerned with trenches dug in a sidewalk, or holes in a sidewalk created by deterioration, the totality of the circumstances, including the portion of the city in which the sidewalk is located, the amount of anticipated traffic and the total nature of the defect must be considered in addition to mere elevation in determining whether reasonable minds could differ upon the question of whether the sidewalk is reasonably safe or dangerous for pedestrian travel.
Concurrence Opinion
J., concurring. It is my view, too, that under the facts in this case we need not disturb the rule
It should be noted that in Smith v. United Properties, Inc. [and Schilliger v. Graceland Shoppers Mart, Inc.] (1965),
“2. The common-law duty of the owner of a shopping center to exercise ordinary care for the safety of its invitees is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercise, under the same or similar circumstances.
“3. All the attendant circumstances must be considered in order to determine whether a sidewalk in a shopping center is reasonably safe for the use of invitees and such determination does not depend solely upon the matter of variation in the height of adjacent blocks in such sidewalk.”
One year later in Helms v. American Legion, Inc. (1966),
“ * * * We do not disapprove or disturb the syllabus because we recognize that there may be instances of defective surfaces*332 used by pedestrians or vehicles to which that syllabus could well be applicable.”
The caveat from all the foregoing cases is that in any given sidewalk defect case, whether involving a municipally controlled sidewalk as in Kimball, supra, or a privately owned or controlled sidewalk as in Smith [and Schilliger] and Helms, supra, where natural wear and tear and climate create the uneven condition, the rigid dimensional factor should not be paramount in deciding that a jury issue exists; rather, the dominant factors for consideration are “all the attendant circumstances.” See paragraph three of the syllabus in Smith [and Schilliger], supra. See, also, Helms v. American Legion, supra, at pages 67-69, dissenting opinion, where Judge Paul Brown cogently observed:
“The idea that a trial court may decide on the basis of a physical measurement that a defect in walks or stairways is not actionable appears to be unique to Ohio law. * * *
<< * * *
“The Supreme Court of Iowa rejected the artificial mechanical application of the yardstick in determining negligence in Beach v. City of Des Moines [1947],238 Iowa 312 ,26 N.W. 2d 81 .
“Colorado called the imposition of such standards, ‘basically wrong in so far as they determine negligence solely by inches,’ ‘improper and error’ and ‘an absurd situation,’ and refused to subscribe thereto. Parker v. City and County of Denver [1953],128 Colo. 355 ,262 P. 2d 553 .” See annotation37 A.L.R. 2d 1187 .
Additionally, the defendants, Langenheim & Thomson Company, and Wray Electric Contracting, Inc., who were jointly active through their construction work in creating this crosswalk defect or depression, should not have the benefit of a Kimball thimble-dimensional rule where the unevenness resulted from climate and natural wear and tear.
In future sidewalk cases this court should not be barricaded in a judicial hole, wearing the strait jacket of a per se dimensional measurement rule as to sidewalk unevenness, unable to be aided by “all attendant circumstances” if the factual posture demands such aid. Rule v. Bay City (1972),
This court establishes legal precedent. But it also possesses the power, and has the duty, to promote the continuous growth and progress of the law. The Supreme Court necessarily fashions new legal principles, and expands upon established rules of law so that justice may be done.
For example, Justice Cardozo in the landmark case of MacPherson v. Buick Motor Co. (1916),
Similarly, this court is not bound by the strait jacket of past precedent. Justice, and not numerous past precedents, is and should be our beacon light. Guided by these standards, we need not reconcile paragraph one of the syllabus with every phrase and clause of all other cases cited in the concurring opinion of Judge Whiteside. Neither can all those cited cases be reconciled with each other.