Aben v. Township of Ecorse

Moore, J. Plaintiff brought this suit to recover for injuries received by him while riding upon a traction engine which fell through a defective bridge. The defect consisted in the decay of the ends of the stringers. It was the contention of the township that plaintiff failed to show any notice of the defect on the part of the township. The trial judge accepted the view urged by the defendant, basing his opinion upon O’Neil v. Township of Deerfield, 86 Mich. 610, and directed a verdict in its favor. In the light of the accident, there is no question raised about the bridge being defective. The only question involved is, was there evidence proper to go to the jury bearing upon the question of notice to the township ? The accident occurred August 6, 1894. Louis Aben testified that, a short time before the day of the accident, the highway commissioner told him he had tested the bridge, and that it was sound. Charles Voss testified that the bridge was just in front of his house; that the bridge was in bad condition; that it would shake when a wagon went across-it; that, in June before the accident, he informed the overseer of highways that the bridge was in bad condition; that they went on the bridge together, and jumped upon it, and it shook. He afterwards qualified his testimony as to when this occurred by saying he could not tell whether it was in March, April, May, June, or July. Annie Theeck testified that she lived near the bridge; that it was an old bridge ever since she knew; that she saw the engine coming, and she and her sister went out to see the bridge shake when the [11] engine passed over it; that she had seen it shake before when teams passed over it. Mathias Raupp swore that he was highway commissioner in 1879, and built the bridge that year; that he saw the stringers after the accident, and identified them as the stringers he put into the bridge. Mrs. Theeck testified that she lived near the bridge, and had for 27 or 28 years; that the stringers were rotten; that the bridge would always shake when a wagon passed over it; that it had been in that condition for nearly two years; that, in June before the accident, she saw the highway commissioner there examining the bridge; that she had driven over the bridge nearly every day before the accident with a loaded wagon, and did not think it would break down. Henry Ritter swore that he lived about a mile from the bridge; that he drove over the bridge with loads in safety, but that he put on small loads, because he was afraid it would break down; that, before the engine went over, he thought the bridge would break down if they went over it with a heavy load. The overseer of highways denied the testimony of Mr. Voss. The commissioner of highways testified that he was under the bridge in June, previous to the accident, to examine the bridge, to see whether it was safe; that he made a careful examination of it, and came to the conclusion that it was safe for reasonable travel, in the ordinary use of such bridges; that he could not, from anything he could discern with the eye, looking at it and examining it, See any evidence of decay. A great deal of testimony was given tending to show that the accident occurred because the engine was driven on one side of the bridge. We think there was sufficient testimony in the case bearing upon the question of notice so that the case should have been submitted to the jury. See Township of Medina v. Perkins, 48 Mich. 67; Stebbins v. Township of Keene, 55 Mich. 552, 60 Mich. 214; Moore v. Township of Kenockee, 75 Mich. 332; Malloy v. Township of Walker, 77 Mich. 448, 464; Blank v. Township of [12] Livonia, 95 Mich. 229; La Duke v. Township of Exeter, 97 Mich. 450 (37 Am. St. Rep. 357). Judgment is reversed, and new trial ordered. Long, C. J., Montgomery and Hooker, JJ., concurred with Moore, J. Grant, J., concurred in the result.