Moody v. Township of Shelby

Moore, J. Plaintiff sued defendant for an injury received on a highway in said township, and recovered a judgment. Defendant appeals. The errors assigned which it is necessary to consider relate to the declaration and to the charge of the court. The declaration, so far as it is necessary to quote it here, reads as follows: “Andthe plaintiff alleges that it was the duty of the defendant to maintain said highway in repair and in a reasonably safe condition for use, so that the public could safely pass along said highway with horses and vehicles at all times in safety; but that the defendant, disregarding its duty in that regard, carelessly and negligently allowed said highway, at a place a short distance west of a certain school-house known as the ‘Ames School,’ to become and remain out of repair, and in a dangerous and unsafe condition, in that the roadbed over and upon which the public were required tó pass with horses and vehicles was graded up from the level of the surrounding land a distance of more than four feet, and the upper surface of said roadbed was only about eight feet wide, and was constructed in part of loose earth, which easily gave way on each side, and by reason of the surface of said roadbed being so narrow, and constructed of soft and loose material, at that place, was unsafe and dangerous; and that the defendant knew, or by dhe exercise of reasonable care ought to have known, of the unsafe and dangerous condition of said highway; and that thereafter the defendant had sufficient time to repair the same, and to render it reasonably safe for the public to pass and repass with horses and vehicles. * * * And that the said fall was not caused by any carelessness or negligence on her part, or on the part of said Sturtevant, but was caused [398] solely by the negligence of the defendant in allowing the roadbed or the traveled part of said highway to be and remain too narrow for the reasonably safe passage of teams, and allowing it to be graded up above the surface of the surrounding land without causing it to be made Avide enough for the safety of travelers with teams and vehicles, which caused the said highway at that place to be unsafe and dangerous, as aforesaid. ” Defendant pleaded the general issue. It is claimed that there is no sufficient allegation of notice to the township of the defect in the highway, and of reasonable time to repair after notice, and failure to repair. The case comes within the decision in Storrs v. City of Grand Rapids, post, and cases therein cited. It is alleged as error that the court refused'to take the •case from the jury because of the contributory negligence of plaintiff. "We think the testimony upon that feature of- the case presented a question for the jury, and that it was fairly and properly presented to them by the trial judge. Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842). The other assignments of error relate to the charge of the court. A detailed discussion of them would not be of interest to any one except the parties to this litigation. While there are one or two sentences in the charge, if isolated and standing alone, that might be regarded as misleading, when they are taken in connection with the record as made, and the balance of the charge, they could not have misled the jury, and they do not constitute reversible error. Lyon v. Watson, 109 Mich. 390. Judgment is affirmed. Long, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.