Lucas Circuit Court.

ket building to the scales on each side, making the platform accessible to pedestrians from every direction, had been used as a common thoroughfare by people generally in that part of the city, both day and night, for a great many years, with the city's knowledge of such use, a pedestrian is not a trespasser in walking thereon, though he may have gone out of his way to do so and though he might have walked upon the street instead, and although the place was originally intended for market purposes only.

3. CITY LIABLE For UnguARDED EXCAVATION THEREIN.

Under circumstances stated in the preceding paragraph, where the scales were removed by the city, or with its knowledge, and an excavation, seven or eight feet deep, caused thereby, left unguarded and unlighted, the city is liable for injuries to pedestrians who, without knowledge of the danger, are injured thereby. Therefore, in an action for such injuries, a charge which, in substance, directs the jury that if the platform was used for market purposes and originally intended for that use only, and the plaintiff was walking upon it for his own convenience, the city would not be liable for injuries resulting from the unguarded condition of the excavation caused by a removal of the scales, is erroneous.

4. CONTRIBUTORY Negligence-MuST BE PROXIMATE CAUSE.

A charge that "If he (plaintiff) was so guilty of negligence, he cannot recover in this action, although you may find from the testimony that the defendant was negligent, as claimed; if the negligence of the plaintiff contributed in any degree to the bringing of this injury upon himself, there can be no recovery," is erroneous. The rule is the same as to the plaintiff, in an action for negligence, that it is as to the defendant, and the negligence, to bar a recovery, must have contributed in some degree directly to the injury complained of.

5. Knowledge of Officers-Knowledge of City.

Where the undisputed evidence, in an action for personal injuries sustained by reason of the negligence of a city in not properly guarding an excavation in a place used as a sidewalk, caused by removal of a set of scales, shows that the city by ordinance leased the scales to a certain person, and through the proper officer notified the former lessee to remove his scales and give way to the new lessee, that the city auditor was personally notified of their removal by the retiring lessee, immediately after removal, that the new lessee was notified o such fact the same day by such officer, and the market superintendent was present and knew that the same were removed, the city cannot deny notice thereof so as to excuse it from properly guarding the excavation. ERRONEOUS CHARGE AS TO Notice.

It is the duty of a market superintendent to see that a market place is not rendered dangerous, either by obstructions or excavations. Therefore the actual knowledge and presence of such officer when market scales were removed, leaving an excavation seven or eight feet deep, in a platform generally used as a thoroughfare by pedestrians, for many years, and with the city's knowledge, constitutes notice to the city of the excavation and a charge from which the jury were led to conclude that inasmuch as the scales were not removed until noon and an accident, for which suit was brought, happened in the evening of the same day, the city would not be charged with constructive notice, and that actual notice would be required, is misleading and erroneous.

HEARD ON Error.

E. L. Twing, for plaintiff, cited:

Iron R. R. Co. v. Mowery, 36 Ohio St. 418, 419 [38 Am. Rep. 597]; Russell v. Columbia, 74 Mo. 480 [41 Am. Rep. 325]; Booth on Street Railways, Sec. 409; Ridenhour v. Railway Co., 13 S. W. Rep. 889 [102 Mo. 270]; Schweinfurth v. Railway Cc., 60 Ohio St. 215 [54 N. E. Rep. 89]; Sherman & Redf. Neg.. Sec. 94; Sproul v. Seattle (City), 49 Pac. Rep. 489 [17 Wash. Rep. 256]; Kansas City v. Orr, 8 Am. Neg. Rep. 36; Stewart v. Ripon (City), 38 Wis. Rep. 585; Sherman & Redf. Neg., Sec. 358; Haniford v. Kansas City, 15 S. W. Rep. 753 [103 Mo. 172];

Nitz v. Toledo.

Abliene (City) v. Cowperthwait, 34 Pac. Rep. 795 [52 Kansas, 324]; Blessington v. Boston, 26 N. E. Rep. 113 [153 Mass. 409; Henry v. Railway Co., 21 S. W. Rep. 214 [113 Mo. 525]; Collins v. Council Bluffs (City), 32 Iowa, 324; Fritsch v. Allegheny (City), 91 Pa. St. 226; Chicago (City) v. Babcock 32 N. E. Rep. 271 [143 III. 358]; Goshen (City) v. Alford, 55 N. E. Rep. 27 [154 Ind. 58]; Rehberg v New York (City), 91 N. Y. Rep. 137 [43 Am. Rep. 657]; Brusco v. Buffalo, [90 N. Y. 679]; Twogood v. New York (City), 6 N. E. Rep. 275 [102 N. Y. 216]; 32 Iowa, 324; Ketcham v. Buttalo, 14 N. Y. 356; Wartman v. Philadelphia, 33 Pa. St. 202; Smith v. Newbern, 70 N. Car. 14 [16 Am. Rep. 766]; Wade v. Newbern, 77 N. Car. 460; Lax v. Corp. of Darlington, L. R. 5 Ex. Dix. 28; 48 L. J., Q. B. 143; Jersey City v. Railroad Co., 2 Atl. Rep. 262 [40 N. J. Eq. 417]; Sec. 2640, Rev. Stat.; Circleville v. Neuding, 41 Ohio St. 465; Zanesville v. Fannan, 53 Ohio St. 605, 617 [42 N. E. Rep. 703]; affirmed in Zanesville v. Soerl, 54 Ohio St. 634 [46 N. E. Rep. 1156]; Circleville v. Sohn, 59 Ohio St. 285, 306 [52 N. E. Rep. 788]; Middleport (Vil.) v. Taylor, 1 Circ. Dec. 534 (2 R. 366); Durbin v. Napoleon, (Vil.), 11 Circ. Dec. 584; Gable v. Toledo (City), 9 Circ. Dec. 63 (16 R. 515); Newark v. McDowell, 9 Circ. Dec. 260 (16 R. 556); s. c. 60 Ohio St. 599 [54 N. E. Rep. 1100]; Matthews v. Toledo, 11 Circ. Dec. 375 (21 R. 70); Hewitt v. Cleveland (City), 11 Circ. Dec. 710 (21 R. 205).

M. R. Brailey, for the defendant in error.

HULL, J.

This action is brought to reverse the judgment of the court of common pleas. The plaintiff in error was the plaintiff below, and a verdict was returned against him at the trial and judgment entered upon that verdict.

The action below was to recover for personal injuries which the plaintiff claimed he had sustained on account of negligence of the city. He complains in his petition that on or about October 30, 1899, he was walking along the platform of Market space, on Superior street, between Monroe street and Washington street, and that about the middle of the platform a set of scales had been removed which formerly stood there, leaving a hole some four or five feet or more in depth. It is alleged that it was in the night, that he did not see the hole, and that he fell into it and was injured.

The answer is in the way of a general denial and alleges that it the plaintiff was injured, it was on account of his own negligence.

It is complained that the verdict and judgment are against the weight of the evidence; are not sustained by suthcient evidence; that the court erred on the trial of the case, and especially in its charge to the jury.

While the plaintif alleged in his petition that he was walking on the market platform at the time he fell into the hole, he testified upon the trial that this was not the fact; that he was in fact walking on the street, on Superior street, crossing the street, at the place where the scales had been, going east, and that 'in that way he fell into the hole. The plaintif testified that he lived somewhere in the western part of the city; that he had been on Summit street and then came upon Monroe street to Superior street, to the western end of Market space. There he made a small purchase, then turned down Superior street, south or east, with the intention of going down that street and finally

Lucas Circuit Court.

reaching his home in that way, but that, when he was about half way between Monroe street and Washington street, he concluded to turn off to the east and go through the opening between the platforms of the market place, where the scales had been, and by way of an alley which ran east and reach St. Clair street and there take a car. He turned off at this point and started across Superior street in an eastward direction, as he claims, for the purpose stated, and when he reached the platform on Market space he undertook to walk through where the scales had been and fell into the hole caused by their being taken out that day. He had three of his ribs broken and was otherwise seriously injured.

It is claimed on the part of the city that whatever errors may have been committed by the trial court, they are not prejudicial for the reason, as it is claimed, that upon the undisputed facts in the case, the plaintiff was not entitled to recover. It is claimed that he was going where he had no right to go and using a part of the street which he had no right to use, except at his own risk, using it for his own convenience, his own purpose, that instead of keeping upon the sidewalk he walked out into the street, and that in so doing he took his own risk and if he was injured, no cause of action arose against the city.

Two decisions of the Supreme Court are cited to sustain this contention, one being Kelley v. Columbus, 41 Ohio St. 263, where the court say in the syllabus:

"A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street.

"The owner of land is not liable for injury resulting from the unsate or dangerous condition of his premises, to persons who go upon them without invitation express or implied.

"The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the adjacent lands."

Kelley was walking along the street in Columbus, in the vicinity of the city hall, and for the purpose of answering a call of nature, he stepped off the sidewalk and walked across the pavement and to the east side of the building in the night season. This building was some thirty feet away from the sidewalk. He fell into an open area and received an injury. The Supreme Court held that where he fell was no part of the sidewalk, that he had no invitation to go there, and if he saw fit to use this place for that purpose, when he might have kept on the sidewalk, he did so at his own risk, and if he was injured, there could be no recovery.

The other case relied upon is Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480]. The party in this case slipped and fell or slid into a catch-basin in the street. He was going across the street diagonally where there was no sidewalk, and the Supreme Court say, in the syllabus:

"A pedestrian who, without necessity and for his own pleasure and convenience, departs from the sidewalks and street crossings, upon which he would have avoided injury, and crosses a street intersection diagonally, and is injured by slipping into a catch-basin which

Nitz v. Toledo.

lay between the crossings, must be held to have assumed the risks which lay in the path which he thus chooses."

So that under these authorities, if Nitz deliberately left the sidewalk and travelled over a part of the street not intended to be travelled upon, for his own purposes and his own convenience, the city would not be liable.

But his evidence shows that he was walking in a southerly direction upon Superior street, upon the west side of it, where there was a sidewalk, and that in the middle of the street, between Monroe street and Washington street, was a market house or market shed, which consisted of a platform with a root over it at that time. The platform is perhaps fifteen feet in width and is used by market men in the middle of the day. This market shed consisted of two parts, and midway between them was this opening for the scales, where they had been for many years, and the evidence shows that from these scales on each side there was a sidewalk to the edge of Superior street, the sidewalk running from the point where Nitz turned off to go to St. Clair street to the opening between the platforms where the scales were, extending to the edge of the opening notherly, and on the other side of the platform there was a sidewalk running to the easterly side of Superior street and ending nearly in front of the city police station, or city hall.

These scales, which were large ones, used for the purpose of weighing wagons, had a platform as long as the market platform was wide, and the platform of the scales was about ten feet in width; they had been used for many years by the public for the purposes of travel, some of the witnesses saying that hundreds of people went through there every day and night, and, according to the testimony, used as a part of the street, and there was on the easterly side of Superior street, an alley running to St. Charles street, which was immediately opposite this opening made by the scales, so that Nitz, when he undertook to go from Superior street on its western side over to St. Clair street, was not departing from the usual route of travel, but he was in fact walking upon a sidewalk that was laid across Superior street from each side of the market house, and was undertaking to walk upon the scales which had been used for many years by people in passing and repassing over this street.

So that, in our judgment, this case does not come within the rules of the two cases referred to and Nitz was not a person who was rambling or roaming about in places where he had no business to go, and therefore, if he was hurt, no liability would arise. The evidence shows, as suggested, that the alley referred to was very much used, and had been for many years, by persons walking from Superior street to St. Clair street, and it was this alley that Nitz was proposing to walk through on his way to take a car on St. Clair street. The scales were taken out at noon and the hole left without light or guard except possibly a pile of earth, and Nitz fell in that night.

The question remaining is whether the court erred on the trial of the case, in its charge to the jury. If Nitz walked upon the street, as he claims, and in fact walked in the ordinary way where he had a right to go and where people were accustomed to go, he was entitled to have exercised towards him ordinary care on the part of the city in keeping its streets and alley-ways in repair, and if an excavation was made in the street, by the city, or with its knowledge and authority

Lucas Circuit Court.

and negligently left without light or guard, and Nitz, without any negligence on his part, fell into it, he would be entitled to recover.

There are different portions of the charge that are complained of. And, first, on page 113 of the record, where the court said to the jury: "Under the issues in this case, therefore, you must determine, first, whether the point in question at which the plaintiff claims to have been injured, was a public street? If it was not, but was rather merely a part of Market space, then the duty of the city toward the plaintiff is different from what it otherwise would be-provided you find from the testimony that he was using it as a street. If the city of Toledo had devoted this space to market purposes, and was so using it, and not for street purposes, then it was the duty of the city to exercise ordinary care in the control of this space to prevent injury to a citizen who was using it for the purposes to which it was devoted. It is not incumbent upon the city to care for market-spaces-market-houses-in the same manner that it is to care for its streets, and the question for you to determine in this case is, whether the city of Toledo neglected any duty that it owed to this plaintiff in this matter? If this shed, through its extent, from Washington street to Monroe street, was so constructed that it could properly be used and was properly used only for market purposes by the citizens generally, then a person who went upon this shed and platform merely for his own convenience-because it suited his purposes better to walk over that than it did to walk over the street and the sidewalks which are intended for the use of foot passengers, out of the market hours, when the ordinary uses of the market are not supposed to be there, and an accident happens and he falls trom the shed and suffers an injury, he takes the burden upon himself. It he is there after such a time, simply for his own purposes, without any invitation on the part of the city, express or implied, he must suffer the consequences of any injury that happens to him as a result of his so being there.'

That portion of the charge is objected to and it is claimed that it was erroneous and misleading. There was evidence tending to show two witnesses testified that Nitz was in fact walking upon the market platform when he fell off; one witness saw him walking along and saw him fall into the hole. Another witness, at a saloon near by, testified that his attention was called to a man coming down the market shed at this time, that his attention was drawn another way for a moment and that his little girl told him that somebody had "fallen into the scales," and this was found to be Nitz. So the evidence was conflicting as to whether he fell in off the platform or from Superior street.

The evidence showed that this platform had been used by people generally in walking back and forth whenever they saw fit, as a portion of the street, making a very convenient place for walking, being a broad platform with a shed over it extending from Monroe to Washington street, running down through the middle of the street, and there were steps there, for the use of people not only during market hours but which were used at all times, and at the opening where the scales were, there were steps down either side for the convenience of people who wished to pass !rom one platform to the other, two sets of steps.

In our opinion, if this had been used as a street for a long time by people generally in that part of the city and by others who might come there, and if they were accustomed to walk back and forth upon this platform, in the night time and in the daytime, as the testimony showed, although this platform was built for market purposes, yet if the people