Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1859-02-15
supreme Court Of ohia.

At session Of the Court held on Tuesday,
February 9Th, the decision in the following case
was announced;
John B. Clark vs. George Fry. Petition in
error to reverse the Judgment Of the District
Court of Lucas county.
BARTLETT, G. j., held:
/. That the right of transit IN the use of the
public highways is subject to such incidental,
temporary or partial distractions as manifest
necessity requires; and among these, are the
temporary impediments necessarily occasioned
in the building and repair of houses on lots
fronting upon the streets of a city, and in the
construction of sewers, cellar drains, &C.
These are not invasiOns, but qualifications Of
the right of transit on the public highway; and
the limitation on them is, that they must not
be unnecessarily and unreasonably interposed or
prolonged
2. Such temporary obstructiOns upon the
highway, when guarded with due care to pre-
vent danger to the public, and not unnecessari-
| Iy extended or Continued, are not nuisances,
and do not require license from the munich
pal authority to legaize them; although suit
able regulations by the city authorities, re-
quiring such obstruetions to be properly guard
ed, and to prevent them from being made in an
| improper manner, or continued uureasonablY,
are usual and highly proper.
3. A city ordinances, imposing, in general
terms, penalty on any person for incumbering
or obstructing any part of any street, lane or
alley, de-, nationally construed, has manifest
reference to nuisanees-in other words, to in
| cumbrAnces, or distinctions, which, but for
some special license, would be unlawful
4. The rule Of respondent superior, as its
terms import, only arises out of the relation Of
superior and subordinate, is applicable to that
relation wherever it exists, as between pTinei-
pal and agent, or master and servant, is eo-ex-
tensive with it, and ceases when that relation
ceases to exist; and the reason of it is to be
traced to the power OF control and direction,
| which the superior has right to exercise, and
which, for the safety Of others, he is bound to
| exercise over the acts of his suberdinates
g. This rule of liability does not apply in
case of an injury sustained BY reason of neel-
gence in the manner Of conducting the execu-
ton of JOB Of work in building house, where
the house builder, by contract with the owner
of lot, has taken upon himself the responsible
ity of the employment Of his own hands, aud
the control and direction Of the work in confLr-
nifty with the terms Of the contract
! 9. Where anything to be done under the con-
tract, is in itself rBlalcfnl or necessarily nju-
Gus 10 third person, the employer as well as
the employee would be liable for any injury re-
sulting therefrom; hut where this is not the
case, and the employer has not the eOatrOl or
direction in the execution Of the work, he is not
responsible for any negligence or other wrong
| ful act committed in the Performance oft.
z. Where, however, the rule of respondent
superior does apply, the action cannot be main
tanned jointly against the principal and the
agent, the former, IN case of recovery against
htm, having right Of action against the latter
for his loss resulting from the wrongful act
| g, Where, however, the owner Of real estate
willfully suffers nuisance to be created, or to
be continued, by another, on or adjacent to his
premises, in the prosecution Of business for
his benefit, when he has the power to prevent
or ahate the nuisance, he would be liable for an
injury resulting therefrcm to third person ii
Judgement Of the District Court reversed,
and cause remanded for further proceedings >.
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