Belyea v. City of Port Huron

Moore, C. J. The plaintiff recovered for injuries received because of a defective sidewalk..- Its condition was described by one of the witnesses as follows: ‘ ‘ Starting from our place and going east, there is first Mellon’s house, then a vacant lot, and then Allen’s house. [505] The vacant lot is between Mellon’s and Allen’s, and is between 40 and 50 feet wide. I recollect that the walk was torn up about the 10th of August. It was torn up by Mr. York. Father was injured about two months and a half after the walk was torn up. Nothing whatever was done to put up guards so as to prevent persons from getting into the opening, caused by the tearing up of the walk. They tore the sidewalk up in front of the vacant lot. It left the place where the walk had been a deep hole, a hollow in the ground under the sidewalk where the sidewalk had been torn up. The walk had evidently been built and raised on posts, kind of blocked up, whether pieces of posts or blocking. I did not measure the depth between the surface of the walk and the bottom of the hole or trench that was caused by the taking up of the walk, but it was probably 15 inches. A person stepping off the easterly end into the opening would go down, say 14 to 16 inches. The hole where the walk was torn up was rather deeper at the east end than it was towards Mellon’s. The walk was not torn up in front of Mellon’s. The walk had been 'built of 4x4 stringers, running lengthways, with cross-planks. I think it was a four-foot walk there. The plank had been torn off the top of a pair of stringers towards the east, leaving them extending out into the opening; I did not measure how far, but anywhere from two to four feet.” The plaintiff is a man 54 years old. He was hurt between 10 and 11 o’clock at night. He knew when the walk was torn out, and knew of its condition. He claims he had visited at Mr. Allen’s; that it was a dark night; that he knew there was a tree each side of the walk near its end; and tljat he was looking for the .trees and the end of the walk, and that he fell off the end of the walk and was severely hurt. It is now said he cannot recover because he was guilty of contributory negligenee. The court charged the jury, among other things, as follows : “ In case you conclude that the defendant is guilty of negligence as just set forth, the next question for you to consider is whether or not the plaintiff was himself in the exercise of due and proper care at the time he alleges he was injured. Plaintiff must also establish this proposition [506] in his favor by a preponderance of evidence before he can recover. If he was not, he is guilty of contributory negligence, and cannot recover in this action. Contributory negligence is defined to be some act or omission by a person injured which an ordinarily prudent man would not have done, or would not have left undone, under the same circumstances, and which directly aided in causing or contributing to the injury received. Hence, under the law of this State in reference to this suit, if plaintiff has done any act which an ordinarily prudent man would not have done, or omitted to do any act which an ordinarily prudent man would have done, he is guilty of contributory negligence, and cannot recover. * * * “ If the jury find that on the 31st day of October, 1900, the walk in question was in a condition not reasonably safe and fit for public travel, and that it had been and remained for several weeks in that condition, and the defendant either knew or ought to have known the existing condition, and the plaintiff, at or about 11 o’clock, came out of a lighted room, and was proceeding carefully along the walk, and endeavored to locate the dangerous place, the location at that time he not having distinctly in mind by reason of the darkness of the night, and by reason of the fact, if the jury find it to be a fact, that his observation was dimmed upon coming out of the lighted room into the darkness, that he momentarily failed to locate the dangerous place, and to detect the landmarks which he was endeavoring to distinguish to use as a guide past the dangerous place, and, while using reasonable care to avoid the dangers, he momentarily lost his bearing and was precipitated into the excavation, then he may be entitled to recover. “ In relation to this question of contributory negligence, you should consider the rapidity which the testimonyshows the plaintiff to have been walking, whether the night was dark or moonlight, and these things you will have to determine from the testimony. If you determine that there was sufficient light for the plaintiff to have seen the alleged defect by using his sense of sight, you have a right to say that his failure to do so is contributory negligence. You may consider whether or not the plaintiff is guilty of contributory negligence because he did not pass around the alleged defective walk, instead of approaching near to it or attempting to pass over it. The knowledge of the alleged defects which the testimony shows he possessed [507] placed upon him the duty to exercise such ordinary care, to act himself carefully and prudently in view of the recognized danger, and to use such reasonable care and caution as a prudent man would ordinarily exercise in view of such fact, and in view of all the circumstances that surrounded the plaintiff at the time and place of the alleged injury, taking his knowledge of the condition of the place in question into consideration.” It has been repeatedly held that a man is not precluded from traveling over a highway or sidewalk simply because he knows there is a defect in it. He is bound, however, to exercise such care and diligence as a prudent man would exercise in view of the danger. "We think the following cases justify the charge of the learned judge: Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Corcoran v. City of Detroit, 95 Mich. 84 (54 N. W. 692); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7). It is claimed the city is not liable because no sidewalk existed at the point the accident occurred; citing Williams v. City of Grand Rapids, 59 Mich. 51 (26 N. W. 279), and Shietart v. City of Detroit, 108 Mich. 309 (66 N. W. 221). In the first of these cases no cross-walk had ever been built by the city, and it was held plaintiff could not recover for the neglect of the city to build one. In disposing of the case the court used the following language : “ The law says nothing about the construction of'crosswalks, and imposes no duty to build them. It evidently means, when it imposes a duty upon municipalities to keep in good repair, that where bridges, cross-walks, culverts, [508] and new sidewalks have once been erected or constructed in the discretion and judgment of the common council, or other authorities having these matters in charge, because of the needs of the traveling public, they shall then thereafter be kept in good repair, and in a condition reasonably safe and fit for public travel. It does not intend to force, by a penalty in damages, the building of these, any more than it does the opening of new streets and highways. The city of Grand Rapids must determine for itself the necessity of opening a street to public travel, and the building of cross-walks over it. For a failure to do either no right of action exists, even if damage or injury is occasioned thereby. When a street is opened or a cross-walk built, then the law steps in and commands that the street or cross-walk must be kept in good repair and fit for travel without danger, ór the city pay the damages arising from defects.” In Shietart v. City of Detroit, Justice Montgomery was of the opinion there was a question for the jury. Justice McGrath took no part in the decision. Justice Hooker concurred in the result, upon the ground that the defect, if any, was obvious, and the walk was safe to all except the heedless. In the opinion written by Justice Grant, and concurred in by Justice Long, it was said: “ The sidewalk was not out of repair. It had not been built.” Justice Morse, who wrote the opinion in Williams v. City of Grand Rapids, supra, wrote the prevailing opinion in Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071), where it was held that the ruling in Williams v. City of Grand Rapids did not preclude a recovery where a sidewalk had been built, and afterwards a portion of it removed. The testimony was very conflicting as to the situation where this injury occurred. The case was submitted to the jury under a very careful charge, and I think the judgment should be affirmed. Carpenter, Montgomery, and Hooker, JJ., concurred with Moore, C. J.