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Opinion of the Court.

railway. If she had continued along the brick crossing she would have reached the sidewalk on Center street without danger from the “pit" or precipice and without injury; but she departed from the crossing and went directly across High street over the rough and frozen ground of the unpaved street, over the low retaining wall between the roadway and the sidewalk, across and not along the sidewalk, between the posts on the abutting owner's ground, at a point about forty feet south from the corner at Center street. She continued on over the sod and over the wall, where she fell.

Now if it be conceded that it was the duty of either or both of these defendants to protect travelers along the highway or the sidewalk, and that is as much as can plausibly be claimed, it must be apparent that the omission of that duty was not the proximate cause of the plaintiff's injury. See Sparhawk v. City of Salem, 1 Allen (Mass.) at p. 30. Her injury did not result from any defect in the street, nor from any excavation, pit or precipice in such proximity to the street as to endanger travelers thereon. It was caused wholly by her act of leaving a safe way in the street, crossing the street and sidewalk and straying upon private property. There was no obligation resting upon the village to prevent her from going outside of the street, the dangerous place being outside of the street and not so near as to endanger those using it in the ordinary and proper way. Its obligation is to keep the streets open and in repair and free from nuisance; and its liability extends no farther than the neglect of

Opinion of the Court.

such duty. Furthermore, the owner of adjacent property, unless expressly so required by statute, is not bound to keep the street or sidewalk in repair and safe for travel, except as to defects created by himself; nor is he under any legal obligation to erect and maintain barriers to protect travelers on or along the street from a dangerous place which is entirely on his own premises, unless the place is so near the street as to render the street, or sidewalk thereon, itself dangerous for travel. In the latter case it is the duty of not only the abutting owner, but of the municipality also, to see that travelers on the street are warned or protected. These propositions are generally recognized as sound law, and the authorities are so numerous and so readily accessible that it is not thought to be necessary to cite them here. But 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 highwav of the dangerous object or place, whether it be much or little; but whether a traveler in passing along the highwav and exercising ordinary care would be subiected to such imminent danger that it would require a barrier to make the highway safe. Kellev v. City of Columbus, 41 Ohio St.. 263. 268; Alger v. City of Lowell, 85 Mass., 402, 405; City of Norwich v. Breed, 30 Conn., 544, 545.

In this case the retaining wall was lawfully constructed and maintained by the abutting lot-owner for his own protection; and it is manifest that it could not be dangerous to persons using the

Opinion of the Court.

sidewalk for its appropriate purpose and with ordinary care, especially with the warning line of posts standing eighteen inches from the sidewalk and with four and a half feet of safe ground beyond that to the retaining wall. The situation continued like that from 1883 to the time of this accident on February 8, 1904, without a single case of a traveler on the street being injured by the “pit” or precipice, at least none such is mentioned in the record. Can it be said that a traveler on or along that street was in any probable danger while he was exercising ordinary care? If not, neither the abutting owner nor the village was, as a matter of law. under any obligation to erect a fence which would prevent any and everybody from getting outside of the street line, whether passing along the street or voluntarily crossing and goino in the direction of the precipice. Glasier v. Toten of Hebron, 131 N. Y., 447; McHugh v. City of St. Paul, 67 Minn., 441 ; 'Hardcastle v. South Yorkshire Ry Co.4 Hurlstone & Norman (Exchequer) R., 67.

The plaintiff was moreover guilty of negligence which directly contributed to the disaster of which she complains. We have already traced her course from her home to the scene of the accident, as she has disclosed it herself. As a witness she seems to have tried to leave upon the minds of the court and jury the impression that she was ignorant of the geography and conditions in the neighborhood of the Holden lot; yet she knew of the brick crossing in the street, and knew when she came to it, and knew that she was crossing the street on the rough and frozen ground. She

Opinion of the Court.

says she knew that there was a step at the end of the brick crossing at the corner of High and Center streets, which appears to have been only a few inches high, and thought when she went over the retaining wall between the roadway and the sidewalk, that it was that step at the end of the brick walk. It was a dark evening, yet she knew when she came to the brick crossing. If she did not know when she departed from it, she had warning enough in the nature of the ground and the obstacles which she encountered to have caused an ordinarily prudent person, under those circumstances, to have stopped and gotten the bearings. Either carelessly or for her own fancied convenience, she departed from the safe way when she left the brick crossing and went heedlessly on across, and out of, the street to her fate. City of Dayton v. Taylor, Admr., 62 Ohio St., 11.

It is argued that it was the province of the jury to find thus and so, and that we are concluded by its findings; but this argument ignores the fact that the court was asked to direct a verdict for the defendants, which it refused to do; and thereby it becomes a question of law, whether upon the undisputed facts the judgment below is justified. Our conclusion upon the whole case is, that the plaintiff has not shown a cause of action against the defendants or either of them; and therefore the judgment of the circuit court as to the defendant Holden is affirmed and the crosspetition of the defendant in error, Martha A. Gilbow, is dismissed; and the judgment of the circuit court and that of the court of common pleas


as to the village of Mineral City are reversea and final judgment is rendered for the village.




GREEN V. Coit.

Levy upon order of attachment on real property-Duty of levying

officer Under Section 5537, Revised Statutes-Description of property required by Section 5528, Revised Statutes.

1. Section 5537, Revised Statutes, which provides that "The officer

shall return upon every order of attachment what he has done under it, and the return must show the property attached," makes it necessary that the return shall show all the essential things the officer has done in the execution of the writ, and

shall so describe the property as to identify it. 2. The provisions of Section 5528, Revised Statutes, which make

it the duty of the officer who undertakes to levy the order of attachment on real property to leave with the occupant thereof, or if there is no occupant in a conspicuous place thereon, a copy of the order, are mandatory requirements, and a return which fails to show compliance with these requirements, and fails to so describe the property as to identify it, is insufficient to give to the court out of which the writ issued

dominion over the property. 3. A statement intended as a description which merely describes

the property as "Building and land $800.00, lot about 25 ft. by 75 ft.," does not show compliance with the requirement of statute that "the return must show the property attached."

(No. 11395—Decided December 21, 1909.)

ERROR to the Circuit Court of Portage county.

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