Comiskie v. City of Ypsilanti

Hooker, J. Ballard and Emmett streets, in the city of Ypsilanti, cross each other at right angles, the former running north and south, and at the point of intersection and vicinity are well built up with residences. Sidewalks [322] have existed for some time upon both sides of Ballard street, both north and south of Emmett street, but no cross-walk has ever been laid across Emmett street connecting the sidewalk to the north and south on the east side of Ballard street. Upon the south side of Emmett street was an open ditch, outside of the sidewalk, for the purposes of a highway drain, which was carried across Ballard street by means of tile, which received the water from the open ditch at the west side of Ballard street, and discharged it into a continuation of the open ditch at the east side of Ballard street. While there was no crosswalk at this point, pedestrians crossed Emmett street there, and their travel had made a beaten path. The tile drain did not extend as far east as the east line of the sidewalk on Ballard street, and the path curved sufficiently far to the west to avoid the open ditch at that point, which, at the end of the tile, is shown by some of the testimony to have been about 20 inches deep. In crossing in the darkness, the plaintiff got out of the path, and was injured by stepping or falling into the open ditch. While there was no cross-walk provided at this point, it was obvious to the city, from the existence of the beaten path, that citizens crossed at that point, and it was under a legal obligation to keep the way in condition reasonably safe for public travel. Whether this highway, at the point mentioned, was so, was a question for the jury. We do not mean to imply that the city should have built a cross-walk, or that covered drains must be constructed at all points, or even across other highways; but whether the construction of this tile drain, and its junction at that particular point with the open drain, was a reasonable one, under all the circumstances and conditions, taking into consideration the grade of the sides of the ditch, the proximity of public light, etc., was a proper question for a jury. It is within the rule of Baker v. City of Grand Rapids, 111 Mich. 447; Malloy v. Township of Walker, 77 Mich. 448 (6 L. R. A. 695). [323] The question of contributory negligence is not discussed,’ and an examination of the testimony indicates that, if in the case, it was for the jury upon this record. The judgment is reversed, and a new trial ordered. Montgomery, Moore, and Long, JJ., concurred with Hooker, J.