62 N.E.2d 857 | Ohio | 1945
Lead Opinion
The single question presented is whether the amended petition states facts sufficient to constitute a cause of action against the defendant.
It is universally agreed that at common law a municipal corporation is not liable for failure in the performance of governmental functions. However, for many years liability has been imposed upon municipalities of this state, in connection with the care, supervision and maintenance of streets.
Section 3714, General Code, reads 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, * * * sidewalks, * * * within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."
The petition in this case is bottomed upon the claim that the defendant created and was maintaining a nuisance in Garfield avenue on September 29, 1942, when a collision occurred between the two automobiles, and that such nuisance was the proximate cause of plaintiff's injury. If, under the averments of the amended petition, the city did create and was maintaining a nuisance at that time and place, which was the proximate cause of plaintiff's injury, then plaintiff's amended petition states a cause of action — otherwise not.
In this case it should be kept clearly in mind that there is no claim of any defect either in Garfield avenue or in Oakwood avenue. Therefore, the question for decision under Section 3714, General Code, is limited to whether the defendant was maintaining a nuisance by reason of the two stop signs on Garfield avenue.
The gist of plaintiff's claim is that twounauthorized stop signs were placed on Garfield avenue, a designated main thoroughfare, at or near its intersection with *521 Oakwood avenue, which was not so designated; that the municipality by its agents and employees had placed the two stop signs upon the wrong street and thereby created, and for several years prior to the collision had maintained, a nuisance at that intersection; and that at the time of the collision she was aware that the stop signs were on Garfield avenue and drove into the intersection in reliance upon the stop signs as giving her the right of way.
Ordinance No. 5068 is not set out and we have no knowledge of all the provisions thereof.
There is no averment in the petition that council did not authorize the placing of the two stop signs on Garfield avenue at or near its intersection with Oakwood avenue. The petition does aver that the stop signs were unauthorized, and were placed upon the wrong street. No facts are averred which warrant those allegations.
Plaintiff by the allegations of the amended petition draws the inference and asks us to do likewise, that, because Garfield avenue was designated a main thoroughfare and Oakwood avenue was not, the placing of stop signs upon Garfield avenue at or near its intersection with Oakwood avenue wasunauthorized and that the stop signs were placed upon the wrongstreet.
A municipality has constitutional as well as legislative authority to control traffic upon its streets, to determine at what intersections traffic shall be required to stop, and to place stop signs at intersections where the municipal authority deems it reasonable and proper.
Reference is made in plaintiff's brief, to the Uniform Traffic Act (Sections 6307-1 to 6307-110, both inclusive, General Code).
The petition in this case clearly discloses that Garfield avenue was designated as a main thoroughfare *522 in 1938. The effective date of the Uniform Traffic Act was September 6, 1941. Therefore, the provisions of that act are inapplicable here. Even if applicable, the Uniform Traffic Act does not extend or enlarge the liability of a municipality under Section 3714, General Code.
A municipal corporation has a dual character, the one public or governmental, the other private or corporate. In its governmental capacity it performs governmental functions, and in its corporate capacity it performs corporate duties.
Speaking generally, a municipality is not liable for negligence in the exercise of a governmental function. SeeAldrich v. City of Youngstown,
On the other hand, a municipality is liable for negligence in the performance of, or failure to perform, a corporate duty. See City of Hamilton v. Dilley,
Considerable confusion may be found in American case law upon this subject, partially due to the failure to distinguish between governmental functions and corporate duties. This court heretofore has recognized and applied that distinction.
If one will read the cases above referred to with that thought in mind, no difficulty will be experienced in harmonizing those pronouncements.
It is quite clear that the General Assembly created a corporate duty by the passage of Section 3714, General Code, for failure in the performance of which the municipality is liable. *523
In construing Section 3714, General Code, this court has confined liability to cases which involve the construction or maintenance of the street, or physical obstructions or hindrances to traffic. We are now asked to extend that well understood and almost universally accepted doctrine.
There is a well recognized difference between the condition of a street and its use by the public. This distinction is pointed out in 43 Corpus Juris, 996, Section 1783, as follows:
"The manner in which a highway of a city is used is a different thing from its quality and condition as a street. The construction and maintenance of a street in a safe condition for travel is a corporate duty, and for a breach of such duty an action will lie; but making and enforcing ordinances regulating the use of streets brings into exercise governmental, and not corporate, powers, and the authorities are well agreed that for a failure to exercise legislative, judicial, or executive powers of government, there is no liability."
That text is supported by many cited authorities, to a few of which attention will be directed.
In Town of Gainesboro v. Gore,
"The making or enforcing of ordinances or other provisions, regulating the use of streets, involves governmental, and not corporate, functions. There is no liability on the part of the municipality for an omission of duty in this respect, unless such liability is imposed by statute." (Italics ours.)
In Hanson v. Berry,
"In our opinion, a holding that a municipality is liable on account of an unsafe condition of the streets, where such unsafety is due to no physical imperfection, would involve the modification of well-established principles of law." *524
In the case of Powell v. City of Nashville,
"Complaint alleging that city failed to enforce traffic ordinance by maintaining stop sign at street intersection, causing collision when automobile in which deceased was riding entered thoroughfare without stopping, held not to state cause of action against city on theory that city maintained nuisance."
In the case of Auslander v. City of St. Louis,
"1. A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold duties and functions. * * *
"3. The maintenance by a city of automatic traffic signals at street corners is the exercise of its police powers and it is not liable for injury caused to an automobilist by negligent failure to maintain in efficient condition such traffic signals."
In Kirk v. City of Muskogee,
"The plaintiffs attempt to bring the present case within the rule of municipal responsibility for the condition of its streets, but it can readily be seen that neglect in the regulation of traffic does not necessarily have anything to do with the physical condition of streets. There is no doubt that the regulation of traffic is a governmental function, and that no liability accrues on the part of a municipality for negligence in the performance of said function. SeeDorminey v. City of Montgomery,
No case has been found wherein a municipality has been held liable for the manner in which it regulated traffic upon the streets or erected traffic signs at intersections.
We think that the distinction between the failure of a city to keep its streets in a safe condition as regards physical defects therein and the failure or neglect in regulating traffic thereon is clear and definite.
It would seem quite plain that if a municipality owes no duty to erect traffic signals at street intersections, or that it is not liable for negligence in respect thereto, it could not create a nuisance by erecting and maintaining such signals.
As we view the situation, the plaintiff is here attempting to bring the instant case within the statute which creates municipal responsibility for the condition of its streets. Neither reason nor authority sustains such a position.
It is our conclusion that the averments of the petition are insufficient to warrant an inference that the stop signs wereunauthorized, or were wrongfully placed upon Garfield avenue in violation of an ordinance; that the regulation of traffic upon the streets of a municipality is a governmental function; that no duty with respect thereto is prescribed by Section 3714, General Code; and that a traffic signal placed at an intersection by the municipality is not a nuisance *526 even though it does not accomplish its purpose. It follows that an action for damages for personal injury against a municipality cannot be maintained, based upon the claim that such municipality created and maintained a nuisance by placing stop signs in close proximity to an intersection, even though the injured person claims such stop signs were placed upon the wrong street and that she was misled thereby into the belief that she had the right of way.
In the Kirk case, supra, the court cited the case of Martin
v. City of Canton,
There is another and equally cogent reason for the conclusion that plaintiff's petition is fatally defective. The demurrer admits all allegations of fact well pleaded but does not admit conclusions of law. Ordinarily the question of proximate cause is a question of fact but where, as here, there is no dispute as to facts that question becomes a question of law.
The amended petition fails to allege whether Beal did or did not stop his automobile on Garfield avenue in compliance with the command of the stop sign before proceeding into the intersection.
If Beal did stop his car before entering the intersection and thereafter drove his car into collision with plaintiff's car while she was driving through the intersection, then the collision was the result of Beal's negligence.
On the other hand if Beal failed to obey the stop sign before entering the intersection then he was guilty of *527 negligence per se and the collision was equally the result of Beal's negligence.
In either event under the allegations of the amended petition the sole proximate cause of the collision was Beal's negligence and the trial court was warranted in sustaining the demurrer upon that ground.
In view of our conclusions, the judgment of the Court of Appeals must be and hereby is reversed, and the judgment of the Court of Common Pleas should be and hereby is affirmed.
Judgment reversed.
ZIMMERMAN, MATTHIAS and HART, JJ., concur.
WEYGANDT, C.J., WILLIAMS and TURNER, JJ., dissent.
Dissenting Opinion
The syllabus approved by the majority is not strictly responsive to the reasoning and conclusions contained in the opinion. The opinion controls the syllabus, the latter being merely explanatory of the former. The decision of the case must be based upon the facts as disclosed by the record. Therefore, this dissenting opinion will be directed to the decision of reversal and the reasoning and conclusions contained in the opinion.
It is stated in the opinion that:
"The question for decision under Section 3714, General Code, is limited to whether the defendant was maintaining a nuisance by reason of the two stop signs on Garfield avenue."
The answer to the question as above propounded is given in the opinion in the following words:
"It follows that an action for damages for personal injury against a municipality cannot be maintained, based upon the claim that such municipality created and maintained a nuisance by placing stop signs in close proximity to an intersection, even though the *528 injured person claims such stop signs were placed upon the wrong street and that she was misled thereby into the belief that she had the right of way."
With this conclusion we disagree.
It is alleged in the amended petition that the agents and employees of the municipality had wrongfully placed said stop signs on the wrong street, in violation of the ordinance designating Garfield avenue as a through street, and that a nuisance was thereby created endangering the lives of travelers on the streets and highways. The nuisance is further described in the amended petition as being created by the form and structure of two unauthorized stop signs of which the municipality had notice. Plaintiff also alleged that she drove into the intersection in reliance upon such stop signs as giving her the right of way.
Another reason assigned for the decision of this case is that the allegations of the amended petition show that the sole proximate cause of the collision was the negligence of the driver of the other car. With this conclusion we cannot agree.
As stated in 30 Ohio Jurisprudence, 300, Section 2, the term "nuisance" has extended application and the definitions thereof vary. In fact a single definition that will fit all cases seems impossible.
In the case of Railroad Co. v. Carr,
"An actionable nuisance is defined by Mr. Cooley in his work on torts, to be anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights; and, on page 566, he says: 'As the definition assumes the existence of wrong, those things which may be annoying and damaging, but for which no one is in fault, are not to be deemed nuisances, though all the ordinary consequences of nuisances may flow from them.' " See, also, 39 American *529 Jurisprudence, 280, Section 2; 46 Corpus Juris, 645, Section 1.
Our position is that the duty of a municipality under Section 3714, General Code, to keep its streets free from nuisance is not limited to correcting mere physical defects but requires the municipality to keep its streets free from anything which in law constitutes a nuisance. We are of the opinion that the allegations of the amended petition describe a nuisance of which the municipality had notice, and that such nuisance, if proved, is actionable under Section 3714, General Code.
No state law, past or present, authorized the erection or maintenance of the signs here involved. Whether a valid ordinance granting such authority might have been or might be enacted need not be considered here. Suffice it to say that if there existed such a valid ordinance it would be a matter of defense.
The amended petition alleges that the signs were wrongfully placed and a nuisance thereby created. The petition further alleges that "the city of Newark, Ohio, had at no time duly designated Oakwood avenue as a through street, main thoroughfare * * *."
Whether the alleged nuisance was the proximate cause of plaintiff's injuries will depend upon plaintiff's proof at the trial. We are concerned here only with the sufficiency of the allegations of the amended petition. No motion was filed by defendant to require plaintiff to make definite and certain her allegations that her injuries were proximately caused by the alleged nuisance created by defendant on Garfield avenue in the form and structure of two unauthorized stop signs. Neither was there a motion to make the description of the nuisance definite. While the demurrer does not admit a conclusion of law the distinction between conclusions of law and conclusions of fact is shadowy. *530
As stated in Bates' Pleading, Practice, Parties and Forms (4 Ed.), 202, Section 236a:
"It is not easy to determine, and less easy to describe, what is a conclusion of law and what is merely an ultimate fact, and what allegation is a compound of law and fact, permissible in certain connections to avoid prolixity, and in other connections is bad pleading. Thus, an averment of negligence is generally an ultimate fact, or a name applied to a course of conduct or class of facts collectively, to state which in detail would violate the rule against pleading evidence.* * *"
Section 2136b, ibid, states:
"If language amounting to a conclusion of law, also, according to its ordinary meaning, contains a fact constituting a cause of action or defense, it is not demurrable, but motion to make more definite lies, and it is cured by not objecting. * * *"
The opinion takes the position that this court may at this time say as a matter of law that the alleged nuisance was not the proximate cause of plaintiff's injuries, but that the negligence of the driver of the other car was the sole proximate cause. The opinion criticizes the failure in the amended petition to allege whether the driver of the other car did or did not stop his automobile on Garfield avenue. We think such an allegation immaterial.
The opinion contains the statement: "On the other hand if Beal failed to obey the stop sign before entering the intersection then he was guilty of negligence per se and the collision was equally the result of Beal's negligence." Surely the majority do not mean to acquiesce in the statement that the failure to observe an unauthorized stop sign erected on a main thoroughfare is negligence per se. Indeed, this court has held that the duty imposed by the statute upon the driver of a vehicle on an intersecting highway is not a specific requirement *531
to do or omit to do a definite act but rather a rule of conduct and the rule of per se negligence is not applicable thereto. See fourth paragraph of syllabus of Heidle v. Baldwin,
In the case of Martin, Jr., v. Heintz,
"There is no presumption of negligence, except such as arises from facts proven. There is a presumption of freedom from negligence, and such presumption stands until rebutted by evidence."
In the case of Pitt, Admx., v. Nichols,
"A presumption of negligence does not arise from the mere fact that a collision occurred which resulted in injury."
In 29 Ohio Jurisprudence, 627, Section 150, it is said,inter alia: "Negligence and contributory negligence then, are governed by the same rules. Neither is presumed."
We grant that if the evidence discloses that the negligence of the driver of the other car was the sole proximate cause of plaintiff's injuries the city would not be liable. But it is our position that the allegations of the amended petition do not show or justify the inference that an intervening cause, to wit, the action of the driver of the other car, was the sole proximate cause of plaintiff's alleged injuries.
In 29 Ohio Jurisprudence, 495, Section 78, it is said:
"It is universally agreed that the mere fact that the intervention of a responsible human being can be traced between the defendant's wrongful act and the injury complained of will not absolve him."
We are not justified in assuming either that the act of the driver of the other automobile was the sole proximate *532 cause of plaintiff's injuries or that plaintiff herself was negligent.
In the case of Gedeon, Admr., v. East Ohio Gas Co.,
128 Ohio St. 335 ,190 N.E. 924 , this court held:
"Damages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that injury to the plaintiff or to those in a like situation would probably result."
This same principle applies to a nuisance created by a defendant.
In the course of the opinion in the Gedeon case, Judge Bevis said at page 338:
"It is not necessary, however, that injury to the plaintiff, himself, be foreseeable. It is enough that the act in question may, in human probability, produce harm to persons similarly situated. Nor is it necessary that the defendant, himself, actually anticipate or foresee the probability of injury to anyone. It is enough that the probability of injury to those in the plaintiff's general situation should have been perceived by a reasonably prudent and careful person."
In the case of City of Hamilton v. Dilley,
"It is the province of the court to define a nuisance and the province of the jury to determine whether the circumstances of the particular case come within the definition of a nuisance."
In the course of the opinion in the Dilley case, Chief Justice Marshall said at page 129:
"In the former decisions of this court absolving municipalities of liability for negligence in the performance of governmental functions, it has not been doubted that such responsibility can be placed upon the municipality by legislative action. More than 75 years ago (Section 63 of an act to provide for the organization *533 of cities, 50 Ohio Laws, 244) the Ohio Legislature did impose a liability upon municipalities, as now set forth in Section 3714, General Code * * *."
In her amended petition plaintiff claims in substance that in reliance upon the presence of stop signs on Garfield avenue she assumed that a vehicle travelling as she was on Oakwood avenue had the right of way and that the presence of such signs on Garfield avenue under the circumstances constituted a nuisance which was the proximate cause of her injuries.
One of the tests for ascertaining whether the consequences of a wrongful act or omission are natural and probable is to determine whether the surrounding circumstances of the particular case are such that the consequences might and should have been foreseen or anticipated (in the instant case by the city) as likely to follow, the wrongful act or omission (in this case, the sufferance of misleading traffic signs in a public street).
In discussing the foregoing test as applied to a negligent act it is said in 29 Ohio Jurisprudence, 485, Section 69:
"This test is frequently made where the negligence of a defendant precipitates the plaintiff into a place of extreme danger, from which he cannot extricate himself in time to avoid injury; and the injury is a consequence such as, under the attending circumstances, could have been foreseen as likely to follow the negligent act of the defendant, the defendant is liable."
This text is based upon the language of the per curiam
opinion of this court in the case of Community Traction Co. v.Freeman,
In the majority opinion it is said:
"A municipality has constitutional as well as legislative authority to control traffic upon its streets, to determine at what intersections traffic shall be required *534 to stop, and to place stop signs at intersections where the municipal authority deems it reasonable and proper."
This statement is contrary to the theory upheld by the majority in other cases involving matters of statewide interest.
In the case of Schneiderman, an Infant, v. Sesanstein,
"General laws have been enacted regulating the manner of driving, and particularly the speed of automobiles upon the roads and highways of the state. These laws are safety regulations enacted in the interest of, and for the protection of, the public, and they definitely fix and prescribe the standard of care that must be exercised in the operation of automobiles throughout the state." (Italics ours.)
The last-quoted statement from the majority opinion in the instant case is contrary, also, to the specific provision of Section 3714, General Code, which provides:
"Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner providedby law. * * *" (Italics ours.)
If it be argued that the foregoing language of Section 3714, General Code, was inserted in that section prior to the enactment of Article
"In matters of state-wide concern the state is supreme over its municipalities and may in the exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state."
Section 6307-6, General Code (being a section of the Uniform Traffic Act), provides:
"The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein."
The holding in the Gamble case, supra, is typical of the holdings of this court in other recent cases involving matters of state-wide interest.
It is also said in the majority opinion: "Reference is made in plaintiff's brief, to the Uniform Traffic Act (Sections 6307-1 to 6307-110, both inclusive, General Code).
"The petition in this case clearly discloses that Garfield avenue was designated as a main thoroughfare in 1938. The effective date of the Uniform Traffic Act was September 6, 1941. Therefore, the provisions of that act are inapplicable here. Even if applicable, the Uniform Traffic Act does not extend or enlarge the liability of a municipality under Section 3714, General Code."
We do not acquiesce in either of the foregoing conclusions. The cause of action set out in the amended petition arose, if at all, on September 29, 1942, after the effective date of the Uniform Traffic Act which regulates the designation by a municipality of any highway as a through highway and regulates the authority of a municipality to require vehicles to stop before entering or crossing an intersection or to designate *536 any intersection as a stop intersection or to require vehicles to stop at one or more entrances to such intersection. Such act further provides that no such designation shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be deemed most appropriate. (Sections 6307-7, 6307-11 and 6307-63, General Code.)
Section 6307-16, General Code, provides in part:
"(a) No person shall place, maintain, or display upon or in view of any highway any unauthorized sign, signal, marking, or device which purports to be or is an imitation of or resembles a traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any traffic-control device or any railroad sign or signal, and no person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising. This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for traffic-control devices.
"(b) Every such prohibited sign, signal, marking or device is hereby declared to be a public nuisance and the authority having jurisdiction over the highway is hereby empowered to remove the same or cause it to be removed."
We need not stop at this time to determine whether the word "person" in Section 6307-16, General Code, is broad enough to cover a municipality but we do call attention to the fact that a nuisance in a public street is not limited to physical defects but includes as well proscribed signs.
If by the last quotation from the majority opinion it was intended to say that the Uniform Traffic Act did *537 not control the erection of the signs in question in the year 1938, the complete answer to such conclusion is that no state law or municipal ordinance (so far as disclosed) authorized the erection of such signs.
Section 6310-30, General Code (118 Ohio Laws, 549), in effect until the effective date of the Uniform Traffic Act, defines certain roads as main thoroughfares, but no such road is here involved.
At the time of the enactment of the ordinance referred to in the amended petition, Section 6310-32, General Code (114 Ohio Laws, 161), provided:
"Local authorities shall have the right to designate by ordinance or resolution additional main thoroughfares and to designate what vehicles shall have the right of way at intersections of main thoroughfares; provided, however, that legible and appropriate signs be erected along the roads and highways intersecting such main thoroughfares, and that such signs outside the corporate limits of a municipality, shall not be nearer than one hundred feet from such intersection."
If we were to assume that the ordinance designating Garfield avenue as a main thoroughfare is still valid notwithstanding the repeal of Section 6310-32, General Code, and the later enactment of the Uniform Traffic Act, there still was no authority in the municipality to erect stop signs on Garfield avenue. Such unauthorized signs had the probable effect of misleading drivers and of luring them into places of danger. The allegations of the amended petition negative any inference that the erection and maintenance of such stop signs was a regulation of the streets "in a manner provided by law."
We are of the opinion that the facts alleged in plaintiff's amended petition show a nuisance which, if proven to have been the proximate cause of her injuries, would create liability on the part of the defendant.
Paraphrasing the language of the opinion in City of *538 Hamilton v. Dilley, supra, as well as some of the language in the opinion in Community Traction Co. v. Freeman, supra, the only real controversy in the instant case is whether the proximate cause of plaintiff's injuries was the erection of the stop signs on Garfield avenue, which under all the attendant circumstances created a nuisance and led plaintiff to assume that she had the right of way, whereby she was precipitated into a place of extreme danger from which she could not extricate herself in time to avoid injury and that her injuries were the consequence such as under the attendant circumstances could have been foreseen as likely to follow from suffering such a nuisance to exist in a public street.
WILLIAMS, J., concurs in the foregoing dissenting opinion.
