Stanton v. Township of Webster

Ostrander, J. {after stating the facts). It does not appear from the testimony that the embankment upon which the road was laid was formed from earth drawn from a distance. It seems to have been made by turning, or turnpiking, the soil in the highway in such manner that, beginning a few rods from the highway at the level [433] of the surrounding land, the road was carried to the height of, and over, the culvert, and approaching which the embankment was, perhaps, six feet higher than the level of the land on either side. It does appear that the top of the embankment was not wide enough to permit two teams to pass; and some witness, or witnesses, testify that outside the point at which wheels of a wagon would run on either side there was less than two feet of space upon the top of the embankment. The testimony also tends to prove that the embankment was rounded; the highest point being in the center of the traveled way. We infer from the testimony that if there had not been snow and ice upon the road, rendering it slippery, a safe passage over it could have been made with a sleigh or a wagon, without any considerable, if any, risk, by a prudent driver. But in this latitude there is more or less snow and ice during the winter months; and roads, as well as other structures, should be, and usually are, constructed with some reference to this fact. A roadway, otherwise reasonably safe for public travel, is not usually made unsafe, within the méaning of the statute invoked in this case, because of natural accumulations of ice or snow thereon. It is obvious, however, that a road may be constructed in such manner as to become unsafe for ordinary travel whenever its surface becomes slippery, and especially whenever it is covered with snow or with ice. In other words, it may be so constructed that it is safe only when it is free from snow or ice, and is unsafe whenever it is covered with a natural accumulation of either. We find it impossible to determine, as matter of law, that the roadway in question, as constructed and existing, was reasonably safe for public travel, that the driver of the horses was negligent, or that the proximate cause of the injury was the icy, slippery condition of the road. We are of opinion that these questions should have been submitted to the jury. Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1012, 6 L. R. A. 695); [434] Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642); Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318); Hannon v. City of Gladstone, 136 Mich. 621 (99 N. W. 790). Other assignments of error have been examined. The second appears to be based upon a misapprehension of the record. The question stated does not appear on the page of the record to which we are referred. The brief does not point out where the exception upon which the third assignment is based may be found. The driver was asked whether a railing on either side of the embankment would have been any protection to him, and the answer was excluded upon the objection that opinion evidence was called for. The question is not precise. A railing would probably have made the road more safe for travel; whether a properly constructed railing would have saved the plaintiff from the particular injury depended upon how the jury might view certain of the testimony. We do not find reversible error in the ruling. The fifth assignment is based upon a ruling excluding an answer to a leading question — a proper ruling, and one which this court should not be asked to review. The seventh assignment is equally frivolous. The eighth assignment is based upon a ruling refusing an answer to a question asked of one of the women who was in the sleigh at the time. The question was: “ You stated that you watched the road, because you were afraid of it. Why were you afraid of it ? ” It is said in the brief that an answer to the question would have explained the condition of the road as the witness viewed it. The court advised counsel that they were permitted to discover all that the witness knew about the condition of the road; and the witness stated that it was narrow, very narrow. We do not see that plaintiff was prejudiced by the ruling. A witness, asked to describe the condition of the road, said: [435] “It was turnpiked up, and was what I call unsafe at that time, no railings at the side.” The court, on motion, struck out the statement that it was unsafe. Error is assigned upon this ruling; and in the brief it is said in support thereof: “ That part of the answer relating to the turnpike condition of the road and to the fact that there were no railings along the sides was certainly competent.” It is clear the court did not rule that it was incompetent, nor strike it out. The purpose of presenting the ruling in this court is not evident. For the error pointed out, the judgment is reversed, and a new trial granted. Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.