The question here presented is whether in this state a municipal corporation is liable for injuries, suffered as a result of its negligent acts in the construction and maintenance of a public street, to persons other than those using such street in the ordinary modes of travel.
In the first place, this court has held repeatedly that “streets, and highways are public and governmental institutions, maintained for the free use of all citizens of the state, and municipalities while engaged in the improvement of streets are engaged in the performance of a governmental function.” City of Wooster v. Arbenz,
In this state, except as provided by statute, municipal corporations enjoy immunity or freedom from liability for negligence in the performance or nonperformance of their governmental functions. Of course, this common-law immunity has no application where the municipal functions are of a proprietary or private nature. It must follow that, in the absence of statute, a municipality is not liable for harm caused by the fall of a tree if its fall is the result of municipal operations of a governmental nature such as the construction or repair of streets and public ways.
Section 3714, General Code (Section 723.01, Revised Code), provides as follows:
“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.” (Italics supplied.)
The provisions of Section 3714, General Code, are in deroga
A brief analysis of the scope and purpose of the statute is appropriate. The subject matter of the statute — “public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts and viaducts” — relates specifically to traditional areas used only for the purpose and means of travel. The term, “public grounds,” contemplates areas to which the public may resort and within which it may walk, drive or ride, etc. It is apparent also that the terms, “street” and “sidewalk,” have the connotation, not of platted street areas, but of areas actually used by the public in travel. Next, it is appropriate to note the scope and character of the duties imposed on a municipality by the statute — to keep these travel areas named “open” to public travel; “in repair,” so as to accommodate and make safe travel over such areas; and “free from nuisance,” which must relate back and be confined to the travel areas specifically named in the statute.
This interpretation of the statute, confining the subject matter to travel areas and municipal responsibility to the care of them to facilitate travel over them, is reflected in the expressions of the courts of this state when construing the terms of the statute. Over and over again the courts have declared that such areas shall be the responsibility of the municipalities, to the extent named in the statute, to persons traveling upon the streets “in the usual modes of travel.” City of Dayton v. Glaser, supra; Gibbs v. Village of Girard,
As to cases more nearly in point with the issues presented in the instant case, this court in the case of City of Wooster v. Arbenz, supra, specifically held that the duties and obligations imposed upon municipalities with reference to the care of their streets through the operation of Section 3714, General Code, “are in derogation of the common law and must therefore be strictly construed, and [that] the provisions of that legislation cannot by implication or interpretation be extended to make a municipality liable for the negligence of its servants while engaged in the act of making improvements to streets, unless such negligence relates to a condition of the street itself and the dam,age is caused by a defective condition thereof.”
In that case Arbenz was injured by a collision of an automobile driven by him with a truck owned and operated by the city of Wooster, the truck at the time being used in hauling cinders for the repair of a public street of that city. At the close of plaintiff’s case, the trial court directed a verdict in favor of the defendant on the ground that the city in operating the truck in question was engaged in a governmental or sovereign function as to which it would not be liable in damages.
This court, in considering the facts of that case, took the position that there was “no liability on the part of a municipality in actions for tort, if the function exercised by the municipality at the time of the injury to the plaintiff was a governmental function,” and held that the function of repairing and improving streets is a governmental function. This court then considered Section 3714, General Code, as affecting the liability of the city under such circumstances, and in his opinion Chief justice Marshall said:
“By virtue of Section 3714, the duty has been enjoined upon municipalities to keep streets and alleys open, in repair, and free from nuisance, and it follows from that that they may be made to respond in damages for a failure so to do. * * *
“Numerous cases have been decided and reported by this court holding municipalities responsible for damages caused by defects in streets, but this court has not in any case declared municipalities responsible for the negligence of their agents and servants while engaged in making repairs and improvements to streets.”
Under authority of the Arbens case, if, in the instant case, the tree had fallen upon the Smith house at the time and because the city workmen cut off its roots in connection with the street paving project, there would be no liability upon the part of the defendant. Does the fact that the tree did not fall and damage the house until several months after the cutting of its roots create a nuisance off the street area and effect, a different legal result under or without the statute? Suppose, in connection with the street improvement, the workmen had negligently left a barrel of poisonous liquid on or near the street, which liquid some months later leaked out and ran off through sewers or drains and damaged property a half mile, a quarter of a mile or a few rods from the street itself, would the city be liable for such damage? Under the principle of governmental function, we do not think so. The duty to remove the tree in ques
In the case of Davis v. Charles Shutrump & Sons Co., supra, where the plaintiff, employed by a contractor who in turn was employed by the city of Youngstown, fell off the top of a bridge abutment within the street area and was injured, this court held that, since plaintiff was not a pedestrian using the street for public travel, he was not protected by the statute, and that, “while under Section 3714, General Code, a municipality is required to keep its streets open, in repair and free from nuisance, the statute must be strictly construed and only those who are using the streets of such municipality as a means of travel are entitled to invoke the rights or remedies afforded by the statute. ’ ’
In several cases outside Ohio, under statutes similar to that of Ohio requiring municipalities to keep their streets in repair, it has been held that there can be no liability upon a municipality even to travelers upon the street or highway, and the same would be true as to those not on the highway, for injuries from falling trees or falling limbs from trees standing upon or adjacent to the traveled highway.
In the case of Miller v. City of Detroit,
“That any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of' neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for*351 travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages * *
The Supreme Court of Michigan, in affirming the judgment, said:
‘ ‘ Certainly it would not be the common understanding from this title that the presence of a dead limb of a tree within the limits of, or overhanging from private premises, a public highway, is such a defect in the highway as to be within the intention of the Legislature in its requirements to maintain and repair streets, bridges, sidewalks, cross-walks, and culverts, and to respond in damages. If we look at the sections themselves, we shall find that they do not give a right of recovery for all injuries, but only such as are sustained by reason of neglect to keejD the ways in repair and in condition reasonably safe and fit for travel — not to maintain a highway where the traveler shall be safe. The duty imposed is to keep ways in reasonable repair, so that they (the ways) may be reasonably safe and convenient for public travel, a stating of the purpose or reason for the requirements made, not an enlargement of them. * * *
“* * # We have held that this statute imposes a duty to remove some kinds of dangerous obstructions from a highway, after notice, but this is upon the theory that they constitute defects in the surface of the roadway itself, and upon no other theory, and this has been held not to include a duty to protect against such temporary obstructions as are due to natural causes * * * [cited cases omitted].
“Another reason forbidding the construction urged is that the language of the statute clearly indicates that it is to the physical highway that it refers in its method of construction, maintenance, defects, and repair. This is indicated, not only by the general words, which, as already stated, should be understood to mean no more, and the rule that a statutory liability, created in derogation of the common law cannot be enlarged by construction * * * [cited cases omitted] but also by the mention of various specific portions of the way, such as side*352 walks, culverts and bridges, which tend to limit the word ‘street.’ ”
In the case of Dyer v. City and Town of Danbury,
“The overhanging limb did not constitute a defect in the highway. It did not obstruct travel thereon, and the city was not bound to remove it as a part of its duty ‘to build and repair’ the highways within its limits. Hewison v. New Haven,
“If the overhanging limb, by reason of its liability to fall upon the traveled part of the highway, constituted a nuisance, as alleged, it ought to have been removed. If it endangered travel upon the highway it was a public nuisance and the city could and should have caused its removal. But this duty of the city was a public governmental one, for the neglect of which no liability at common law ensued to the city, and no statute imposes any. Hewison v. New Haven,
The instant case is to be distinguished from cases relating to nuisances permitted to exist in public park areas. In the case of Gottesman, Admr., v. City of Cleveland,
In the instant case, this court, applying to the statute in question a strict construction as is required, concludes that the weakened tree did not constitute a disrepair, defect or nuisance in the “street” itself, and, as a consequence, the provisions of Section 3714, G-eneral Code, did not create a liability against the defendant. Likewise, there was no liability against the defendant outside the statute, because of its governmental immunity.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.