The opinion
Cushing, J.,
dissenting. I am unable to agree with my associates either as to the application of the authorities cited to the facts in this case, or in the conclusion reached. They cite and stress
City of Dayton
v.
Glaser,
76 Ohio St., 471 , 81 N. E., 991 , 12 L. R. A. (N. S. ), 916, and
Gibbs
v.
Village of Girard,
88 Ohio St., 34 , 102 N. E., 299 .
In
City of Dayton
v.
Glaser ,
the question upon which the court passed, and to which it applied the law, grew out of the fact that the municipality had allowed the street to become out of repair to such an extent that there were many holes from four to five inches deep in the street, and the injury was due to these holes.
In
Gibbs
v.
Village of Girard ,
the village had allowed a sewer under the sidewalk to undermine the same and cause a drop or fall in the sidewalk, so that there was an offset of about or a little more than four inches, and the village allowed this condition to remain for several years. It was as to these facts that the court applied the law.
In the case at bar the city adopted a plan of placing loading platforms in the street near the street car tracks, for the benefit of the public. The part of the public using the street cars, and crossing the
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streets, would be in a place of safety when on such platforms. The part of the public using automobiles could drive on either side of the platform in the ordinary way without delay. This was not a case of neglect on the part of the city, but it was the adoption of a plan for the convenience and safety of the general public.' There was no showing that the street was not in a condition for use for travel in the ordinary way, and, if so, it was free from nuisance.
City of Cincinnati
v.
Fleischer, Admr.,
63 Ohio St., 229 , 58 N. E., 568 ;
City of Troy
v.
Brady,
67 Ohio St., 65 , 65 N. E., 616 .
In
City of Jacksonville
v.
Bell,
93 Fla., 936 , 112 So., 885 , 53 A. L. R., 163, it was held: “A municipality cannot be held liable for maintaining an obstruction in the street, which obstruction is so placed in the street for the purpose of rendering that place safer for the public in general than it would be without such obstruction, and which is for the purpose of protecting the life, limbs, and property of that portion of the general public who must use such place for the lawful purpose of entering and departing from street cars.”
In the case of
District of Columbia
v.
Manning,
57 App., D. C., 156, 18 F.(2d), 806 , 53 A. L. R., 167, the Court of Appeals of the District of Columbia held that where a municipality used safety zones, marked with iron markers 18 inches in diameter, painted white, but without lights, and in accordance with a uniform plan, which devices were placed in the street for the protection of the general public, and as an aid to the regulation of traffic, wide latitude should be afforded the authorities in devising and establishing safety zones. The first
*570
paragraph of the syllabus of that case is: “The placing by a city of iron markers at the outside corners of a safety zone at a car stop, in accordance with a uniform plan throughout the city, does not constitute negligence as matter of law, or render the municipality liable to a pedestrian falling over a marker to her injury.”
The principal contention in the case at bar is that the city failed to maintain a light on the structure. It is true that the municipality acts by authority from the state. The General Assembly of Ohio, in defining the general powers of municipalities, Section 3829, General Code, states that a municipality has power to establish and care for streets, and, among other things, to light them.
There was no ordinance pleaded or proved requiring the city to light the streets, or to maintain a light on this loading.platform.
The evidence discloses that there was a thousand candle power arc light burning about 60 or 70 feet from the point in question, and that there were cluster lights along the side of the street. The testimony is conflicting as to whether or not these cluster lights were burning.
The arc light above referred to was on an arm suspended over the street, and whether the cluster lights
were
burning or not there is no dispute from the record but that there was illumination at the point in question.
Counsel for defendant in error cite the case of
City of Circleville
v.
Sohn,
59 Ohio St., 285 , 52 N. E., 788 . In that case the sidewalk had a slope of at least 2 feet in 16 feet and the city allowed it to remain in that condition. It was charged that the
*571
stones were rough, and uneven, and that said slope was dangerous to persons traveling on the walk when the same was covered with ice and snow. It was also charged that the sidewalk where it crossed the alley was constructed in a dangerous and defective manner. The facts to which the court applied the law in that case are different from the facts in the case at bar, and I do not consider it an authority in this case.
I am of opinion that the loading platform was planned and designed by the authorities of the city of Hamilton for the benefit, safety, and convenience of the general public; that the street was open for travel in the ordinary way; that there was no proof that the municipality was required to place a warning light on said post and platform; that the street in the vicinity was illuminated; and that there was an entire failure of proof that the municipality was guilty of any violation of a duty that it owed to a passenger in an automobile. I am further of the opinion that the judgment of the trial court should be reversed, set aside, and held for naught, and that judgment should be entered here for the plaintiff in error.