Zanger v. Detroit City Railway Co.

Long, J. This is an action on the case brought to recover damages for being thrown from a wagon and severely injured through the joint negligence of both defendants. The plaintiff is a pretzel manufacturer, and vends and delivers his pretzels to different saloon-keepers in the city of Detroit. On July 29, 189(k he was engaged in delivering pretzels with a horse and light spring wagon, in which was a box in which he carried the pretzels he sold. The pretzel-box was high, and sat within the wagon-box, but was not fastened thereto. The seat occupied by the driver was on top of the front end of the pretzel-box, with the feet resting upon-a guard. Baker street is a public street in the city of Detroit, running in an easterly and westerly course, and had been paved with cedar blocks. The Detroit City Railway Company’s track occupies the center of the street, and at the time before stated the company was engaged in replacing the cedar-block pavement between the rails of its track with cobble-stones. In doing so it had obstructed the-south side of the' street in the block east of Seventeenth street with blocks removed from the center of the street and with the cobble-stones, so that travelers could not pass with vehicles on that side of the street. The evidence [648] tended to show that the railway company had deposited a ridge of sand or déiris, taken- from between the rails, along or close beside the north rail, causing a ridge about six inches in height and some 50 feet in length, extending from Seventeenth street east to where the employés of the company were repairing the track. Plaintiff had invited a Mr. Poole to ride with him that morning, and he was seated at the right hand of Zanger upon the box. The plaintiff drove from Eighteenth street east on the south side of Baker street, and as he passed Seventeenth street he observed the men at work repairing the street railway, and the obstructions upon the south side, and when about 10 feet therefrom, drove ¡angling across the track to the north side, at a speed of from four to six miles an hour. He saw the ridge, ■which was about six inches high, and the forward wheels passed over it without difficulty; but just as the right hind wheel was upon the ridge the left forward wheel went into a hole in the cedar-block pavement, which he had not seen, when the wagon tipped, the pretzel-box was capsized, and the plaintiff and Poole were thrown to the ground, plaintiff falling upon some iron rails lying in the street next to the gutter, and his leg was broken. The testimony tended to show that the hole was about one foot long, about as wide, and from five to seven inches deep, and was caused by the cedar blocks having been worn out or removed. Plaintiff’s testimony tended further to show that he drove by there on the Sunday previous, and no work was then going on, and there were no obstructions there; and that on the morning of -the 29th, the date of the injury, before he reached the ■obstruction, he saw that they were repairing the streets, ¡and the blocks torn up. Defendants introduced no testimony. When the plaintiff closed his proofs, counsel for defendants requested the [649] -court to direct a verdict for the defendants. The court so directed the verdict, and plaintiff brings error. It is claimed on behalf of the street railway-company that there is no proof of negligence upon its part; that it was repairing its track at or near the place of the accident, and it had a right to deposit material taken from between the rails at the side of its track; and that it would not be liable if it removed the deposit within a reasonable time. We think counsel are correct in this contention. It was held in Bowen v. Railway Co., 54 Mich. 502, that, in an action to recover for an injury caused by an obstruction to the highway, it is proper for the plaintiff to base his right of action upon the obstruction as unlawful at the time of the injury, and it rests upon the defense to show that the obstruction was lawful under the circumstances; that it is always a sufficient answer to say that the obstruction was in the highway for only a reasonable time, and for a lawful purpose. It appears in the present case that the obstruction placed in the highway by the defendant railway company had only remained there for a few hours,1 and not for an unreasonable length of time. This doctrine was also laid down in Cowan v. Railway Co., 84 Mich. 583, where it was said: “In the ordinary course of operating its street railway the defendant was engaged in repairing and laying its track, which it had the undoubted right to do; and it was not negligence for it to excavate and throw up earth while thus engaged. The proofs do not - show that the earth was allowed to remain there for an unreasonable time, nor does the declaration allege that it was allowed to remain there in the night-time, or without ’ lights or barriers.” [650] The proofs in the present case have no tendency to show any negligence on the part of the street-railway company. So far as the defendant city is concerned, there is no proof tending to make a case in favor of the plaintiff against it. The proximate cause of the injury was this ridge of sand across which the plaintiff drove. It is not shown by the record, nor claimed, that the injury would have occurred solely by reason of the defect in the street occasioned by the hole, but the plaintiff's whole case is grounded upon the theory that, by running upon this ridge of sand with one wheel, and the other dropping into the hole, the injury was occasioned. We think no case was made against the city. Aside from these considerations, I think the court was correct in taking the case from the jury upon the ground of the plaintiff's contributory negligence. He saw the men at work there, knew the track was being repaired, saw the pile of sand, and drove over it with the horse upon a trot, and without any consideration that the high, loose box upon which he was riding might be turned out of the wagon by running over this obstruction, which was plainly within his view. The judgment must be affirmed, with costs. Morse-and Grant, JJ., concurred with Long, J. Footnotes [1] It was placed there in the morning of the day of the accident, which occurred at about 11 o’clock in the forenoon.