Village of Mineral City v. Gilbow

Citations

• 81 Ohio St. (N.S.) 263

Syllabus

<p>Joint action against municipal corporation — And street abutting property owner — For damages to plaintiff — From falling over retaining wall — Misjoinder of parties defendant, zahén — Duty of property owner as to barrier — Protecting highway travelers —Duty of municipality as to protection of highway — Duty of highway traveler — Lazv of contributory negligence.</p> <p>1. In an action jointly against a municipal corporation and the owner of a lot abutting upon a street, to recover damages for injuries resulting to the plaintiff from falling over a retaining wall, where the allegation, against the lot-owner is . that he wrongfully and negligently maintained upon his premises a dangerous pit, which encroached upon a sidewalk, without any barrier or other protection to warn persons using the sidewalk or to prevent them from falling into such pit, and where the allegation against the municipality is that it wrongfully permitted said sidewalk to be in a dangerous condition without any such barrier, and that at the time of plaintiff’s injury it negligently allowed an electric light near the place of the accident to be unlighted, there is a misjoinder of parties defendant.</p> <p>2. In determining whether it is necessary, in a particular case, that a barrier should be erected in order to make the highway safe for travelers thereon, the .true test is not the distance from the highway of the dangerous object or place, whether it be much or little; but whether a traveler in passing along the highway and exercising ordinary care, would be subjected to such imminent danger that it would require a barrier to make the highway safe.</p> <p>3. When it appears in such case that the street itself, including the sidewalk, is not defective and is safe for travelers thereon, and that the pit or excavation complained of does not substantially adjoin the street, and is six feet away from the street line and upon the grounds of an abutting owner, no action will lie at common law against