Syllabus.

have been sustained. The judgments of the circuit and superior courts are reversed, and judgment is here rendered for plaintiff in error.

Judgments reversed.

SHAUCK, C. J., JOHNSON, DONAHUE, WANAMAKER and WILKIN, JJ., concur.

GIBBS V. VILLAGE OF GIRARD.

Municipalities not insurers of safety of streets and sidewalksBut required to keep same in reasonably safe conditionRight of trial by jury inviolate-Cause for damages presents jury issue, when-Order of judge to direct verdict-Violation of right of jury trial, when--Question of ordinary care.

1. Municipalities are not insurers of the safety of their streets and sidewalks, but are required to exercise ordinary care in keeping their streets and sidewalks in a reasonably safe condition for public travel, and a failure of duty in this respect is negligence.

2. The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.

3. A cause of action for damages brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury issue if there is some evidence tending to prove every essential fact necessary to entitle plaintiff to recover; and an order of the trial judge at the close of the plaintiff's case directing a verdict in favor of defendant over the objection of such plaintiff is a denial and violation of the right of trial by jury and therefore reversible error.

4. What is ordinary care, what is reasonable safety, and the like, are, in the first instance, usually questions for the determination of the jury under all the evidence and proper instructions by the court appropriate to the particular circumstances of each case and the issues thereof.

(No. 13045-Decided May 6, 1913.)

Statement of the Case.

ERROR to the Circuit Court of Trumbull county.

The plaintiff filed a petition in the court of common pleas of Trumbull county charging the village of Girard with negligence in the care of its sidewalks in the following particulars, to-wit: That on or about the 7th of August, 1909, about the hour of nine o'clock P. M., she was going north on the westerly sidewalk on a street in said village known as State street; that the sidewalk in front of the Stuttler lot was paved with flagstones; that the sidewalk in front of the next northerly lot, known as the Jones lot, was paved with cement; that at the point where the flagstone and cement joined, there was about a twoinch sudden fall or drop causing an offset; that this had been caused by a sewer underneath the cement sidewalk undermining the same and causing the same to fall or depress; that this defective condition had existed for a period of several years; that it was well known to the village or by the exercise of ordinary care should have been known to said village; that it was not known to the plaintiff; that she was a stranger in the village and to the sidewalk; that it was dark and unlighted at the point of the sidewalk where the injury occurred; that such sidewalk at that point was one of the most frequented and traveled parts of said village and but a short distance from the business center of the village; that in coming upon such sidewalk at such point the toe of her shoe became caught in the lower part of said walk, whereby she was suddenly and without warning thrown to the ground and sustained

Argument for Plaintiff in Error.

serious injury; that she was all the while in the exercise of ordinary care; that the defect in the sidewalk where such injury occurred was not discernible to her by reason of the darkness aforesaid.

The village of Girard answered denying all negligence and charging further that if the plaintiff was injured it was by reason of her own negligence directly or contributing to such negligence as might be found against the village.

At the close of the plaintiff's case a motion to direct a verdict in favor of the defendant village was sustained by the trial judge.

Error was prosecuted to the circuit court, which affirmed the judgment below. Error is now prosecuted to the supreme court to reverse the judgments of both the common pleas and circuit courts.

Messrs. Pierson & Casey and Mr. Charles Koonce, Jr., for plaintiff in error.

The court erred in sustaining the motion of the defendant to direct a verdict in its favor. Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 446; 15 Am. & Eng. Ency. Law (2 ed.), 440, 441; 1 Shearman & Redfield on Negligence, Sec. 350; Goodfellow v. New York, 100 N. Y., 15; Bullock v. New York, 99 N. Y., 654; Heckman v. Evenson, 7 N. Dak., 173; Williams v. West Bay City, 126 Mich., 156; City of Lawrence v. Littell, 9 Kans. App., 130; City of Osage v. Brown, 27 Kans., 130; Laurie v. City of Ballard, 25 Wash., 127; Keen v. Mayor, etc., of Havre de Grace, 93 Md., 34; Dickerman v. Weeks, 108 App. Div.,

Argument for Defendant in Error.

257; Corson v. New York, 118 App. Div., 679; District of Columbia v. Arms, 107 U. S., 519; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed. Rep., 672, 14 C. C. A., 615; Glantz v. South Bend, 106 Ind., 305, 6 N. E. Rep., 632; Urtel v. City of Flint, 122 Mich., 65, 80 N. W. Rep., 991; Baxter v. City of Cedar Rapids, 103 Ia., 599, 72 N. W. Rep., 790; City of Aurora v. Cox, 43 Neb., 727, 62 N. W. Rep., 66; Wilkins v. City of Flint, 128 Mich., 262, 87 N. W. Rep., 195; Wedderburn v. City of Detroit, 144 Mich., 684, 108 N. W. Rep., 102; Lamb v. City of Worcester, 177 Mass., 82; Welsh v. Inhabitants of Amesbury, 170 Mass., 437; Town of Watertown v. Greaves, 50 C. C. A., 172, 112 Fed. Rep., 183.

Mr. Wade R. Deemer and Mr. G. P. Gilmer, for defendant in error.

The court did not err in sustaining the motion of defendant to direct a verdict in its favor. City of Dayton v. Glaser, 76 Ohio St., 471; Buswell on Personal Injuries (2 ed.), Secs. 53, 168; Chase v. Cleveland, 44 Ohio St., 514; City of Cincinnati v. Fleischer, 63 Ohio St., 234; Durbin v. Napoleon, 11 O. C. D., 584; Kaweicka v. Superior, 136 Wis., 613; Young v. Citz. St. Ry. Co., 148 Ind., 54; Village of Leipsic v. Gerdeman, 68 Ohio St., 7; Town of Gosport v. Evans, 112 Ind., 133; Bennett v. St. Joseph, 146 Mich., 382; Weisse v. Detroit, 105 Mich., 482; Yotter v. Detroit, 107 Mich., 4; Gastel v. New York, 194 N. Y., 15; Hamilton v. Buffalo, 173 N. Y., 72; Butler v. Village of Oxford, 186 N. Y., 444;

Opinion of the Court.

Corson v. New York, 78 App. Div., 481; City of Richmond v. Schonberger, 111 Va., 168, 68 S. E. Rep., 284; Marvin v. New Bedford, 158 Mass., 464; George v. Haverhill, 110 Mass., 506.

WANAMAKER, J. The sole, single question isDid the trial court err by directing a verdict at the close of plaintiff's side of the case and the circuit court likewise err in affirming the trial court's judgment?

It will be refreshing and instructive to look at some of the ancient landmarks of America as to trial by jury.

Article VII of our federal constitution reads: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

Section 8 of Article VIII, Bill of Rights, Constitution of the state of Ohio, 1802, reads: "That the right of trial by jury shall be inviolate."

Section 5 of Article I, Bill of Rights, Constitution of 1851, reads: "The right of trial by jury shall be inviolate."

Judge Ranney, in Work v. The State of Ohio, 2 Ohio St., 297, uses this language: "What, then, is this right? It is nowhere defined or described in the constitution. It is spoken of as something already sufficiently understood, and referred to as a matter already familiar to the public mind. *** The constitution furnishes no answer, nor was it necessary that it should. If ages of un