In the maintenance of a public park for the benefit of the general public, the city of Findlay performed a governmental service, and under the law as laid down in the case of Selden v.City of Cuyahoga Falls, supra, the city, while acting in such governmental capacity, incurs no liability in tort for common-law negligence.
The provisions of Section 3714, General Code, requiring a municipality to keep its public grounds free from nuisance present the issuable question in this case as to whether the city of Findlay in fact did create a nuisance in the display of fireworks on July 4, 1936.
There is nothing in the pleadings or in the evidence *Page 386 that would indicate that in the proper operation of the fireworks there was any negligence or nuisance.
The general public was invited to attend. It was advised of the general nature of the entertainment. The mere fact that an unforeseen and unexpected misfortune happened does not establish that the city was careless or that the city created or maintained a nuisance.
Under the pleadings and the admitted facts, the most that can be claimed under the circumstances is that the party in charge of the entertainment was guilty of some negligence. Admitting, for the sake of argument, that the city is responsible for the negligence, yet under Section 3714, General Code, and under the authorities as I interpret them, the city would not be liable for negligence while in the discharge of a governmental function or duty. In support of my conclusion I cite, in addition to the case above referred to, City of Cleveland v. Ferrando, supra; City ofWooster v. Arbenz, supra; City of Cleveland v. Pine, 123 Ohio St. 578, 176 N.E. 229, 74 A.L.R., 1224; City of Cleveland v.Gustafson, 124 Ohio St. 607, 180 N.E. 59, 79 A.L.R., 1325; Cityof Mingo Junction v. Sheline, Admx., 130 Ohio St. 34,196 N.E. 897; City of Cleveland v. Walker, Admx., 52 Ohio App. 477,3 N.E.2d 990. *Page 387