Weitzel v. Village of Fowler

Grant, J. {after stating the facts). 1. About two weeks before the accident, notice of the defect was given to the street commissioner by one who fell within two or three feet of this same place, in substantially the same way. Defendant claims that the street commissioner had no duty, under the law, to inform the council of the defect in the walk, and no authority to repair without their instruction. Under the statute— “Street commissioners, * * * having special charge of highways, streets, bridges, sidewalks, cross-walks and [702] culverts, and the care or repairing thereof are hereby made and declared to be the officers of the village, * * * and shall be subject to the general direction of such township, village, city, etc.” 1 Comp. Laws, § 3443. By section 2744 it is made the duty of the street commissioner to perform such labor, repairs, etc., upon streets, sidewalks, etc., as the council shall direct, and to oversee and do whatever may be required of him in relation thereto by the council. It is true that the law does not expressly provide that the street commissioner shall give notice to the common council of defects in streets and sidewalks that come to his knowledge. It is also true that he cannot of his own motion make repairs. He is, however, the proper officer to look after the streets, and to be notified of defects. Re.gardless of any express provision of the statute, it his duty, ■upon being notified of defects, to inform the common •council, in oi’der that they may be remedied. The very name “street commissioner” implies that he is the proper ■channel through whom the council may be informed of defective streets and sidewalks. The case of Corey v. City of Ann Arbor, 134 Mich. 376, does not apply. In that •case it was held that a patrolman and city clerk had nothing whatever to do with the streets, and therefore notice or knowledge to them was no notice or knowledge to the •city. The street commissioner testified that, whenever he heard that a sidewalk was out of repair, he notified the street committee, and that in this instance he did notify the committee. 2. It was entirely competent to give evidence of the general defective condition of the sidewalk in the vicinity of the place of the accident. Will v. Village of Mendon, 108 Mich. 251; Styles v. Village of Decatur, 131 Mich. 443. This covers the second and third defenses. 3. Evidence that one Briggs, a private citizen, of his own motion, put in one plank in.place of two broken planks about two weeks before the accident, is not evidence of such repairs as the statute contemplates on the [703] part of the city, and did not therefore require the plaintiff to prove that the sidewalk had become out of repair after the repair made by Mr. Briggs. 4. Plaintiff employed two physicians, a father and son. The son, a witness for plaintiff, testified that he and his father attended plaintiff, and that his leg was broken. It was the contention of the defendant that his leg was not broken, and that, if it had been, it would have been impossible for him to walk, as he did, from the place of the accident to his home. The defendant introduced a physician, who on cross-examination was asked if the two physicians who attended the plaintiff were not reputable physicians. The testimony was incompetent, but it is entirely clear that it was not prejudicial. The smallness of the verdict shows that the jury did not find that the plaintiff’s leg was broken. Its admission was therefore error without prejudice. Judgment affirmed. McAlvay, Blair, Montgomery, and Moore, JJ., concurred.