Mackie v. City of West Bay

Hooker, J. The plaintiff was injured by a fall upon defendant’s sidewalk, occasioned by stepping into a hole in the walk. This hole consisted of an opening caused by the breaking of a large piece from one of the boards. It was four or five inches wide, and somewhat longer. The court directed a verdict for the plaintiff, against the request of the defendant’s counsel, who claimed that at the least the question of contributory negligence was for the jury. The court said that, inasmuch as the plaintiff’s declaration alleged that she was passing along the street in a careful manner, he should refuse to instruct the jury, as requested, that she was guilty of contributory negligence. We think that the defendant was not entitled to have this request given, for the most that can be said is that contributory negligence was a question for the jury. We think, however, that this question should have been left to the jury; for, while the plaintiff testified that she was “walking along the street, exercising ordinary care and caution, walking along just quietly, as women ordinarily walk on their way to church, and -her foot went down [244] through a hole in the hoard,” etc., there was testimony-showing that this occurred in broad daylight, and that she passed the place every Sunday, and had never noticed this defect; while by other witnesses she proved it to have been of long standing. Unless some excuse is given for a failure to see a large and plainly visible hole in a sidewalk in daylight, there is ground for the claim that the person injured is heedless; and it would be competent for a jury so to find, although the defendant offered no further evidence of negligence. She alleged in her declaration that she exercised proper care, i. e., was not negligent; yet she shows circumstances which are consistent with a want of care. The most that can be said for her testimony is that it authorized her to gO' to the jury upon that question. It was not sufficient to justify a verdict by direction. It is unnecessary to discuss the other questions in the case, except to say that under the charter1 it was unnecessary for plaintiff to file a verified claim with the council before bringing action. Lay v. City of Adrian, 75 Mich. 438. The judgment must be reversed, and a new trial ordered. The other Justices concurred. Footnotes [1] Act No. 307, tit, 4, § 17, Local Acts 1885.