Dewey v. The City of Detroit

• Decision Date: 16 April 1867
• Citation: 15 Mich. 307
• Court: Michigan Supreme Court
• Parties: Harvey Dewey v. The City of Detroit

15 Mich. 307

Harvey Dewey v. The City of Detroit

Supreme Court of Michigan

April 16, 1867

Heard April 10, 1867 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of trespass on the case brought by plaintiff in error for damages, alleged to have been sustained from injuries received by defects in one of the sidewalks of the city of Detroit.

The only question involved is whether the circuit judge charged the jury properly, with reference to the rule concerning the negligence which would charge the city for the accident.

The facts and charges of the court are stated in the opinion. Judgment was rendered in favor of the city.

Judgment affirmed, with costs.

Ward & Palmer, for plaintiff in error:

1. The city of Detroit has full control over the construction and repairs of the streets and sidewalks within the city limits to the exclusion of all individual action in the matter, and the power to levy and enforce the collection of taxes to defray the expense thereof. The power being given, the duty to execute it follows; and for neglect in that behalf the city is liable: City Charter, pp. 30-40 and 41; 9 Mich. 165; 39 Barb. 330; 17 N. Y., 105.

The city being liable for neglect, and the defect in the sidewalk not disputed, the only question raised on the trial, and reserved for the consideration of this court is, whether the defect was of such a nature that the city is liable for its existence or continuance.

The court charged the jury in substance that the city would not be liable unless they had notice of the defect; that if any city officer had actual notice of the defect, or if it was of long standing and so open and palpable as to be apparent and necessarily attract the attention of passers by, that notice might be inferred, and the city would be liable.

Two classes of defects may exist--one arising from the improper construction of the way, or neglect in taking care of it and making necessary repairs--and the other from accident or from agencies not under the control of the party liable to maintain and keep the way in a proper condition.

When a flood washes away a bridge or other part of a highway, or a tornado blows trees across it, or individuals place obstructions in it or make unauthorized excavations, the city, town, or county can not be considered in fault until they have had notice of the defect, or time by reasonable diligence to find it out and repair the injury: 35 N. H., 74, 52; 40 Id. 410; 41 Id. 135; 43 Id. 265; 27 Conn. 293; 13 Pick. 94.

But when the way gets out of repair, from defective construction, or from ordinary use or wear and decay of the same, or from causes constantly existing and apparent, then the defect arises from culpable inattention to duty, and no notice is necessary to establish the neglect: 39 Barb. 330; 2 Hilton 440.

In this case no proper drains were constructed under the walk to conduct away the water from the lots adjoining it; and so defective was it in this respect, as shown by the witness Lacroix, that the walk was frequently afloat on the water accumulating under it, and moved up and down as people walked over it, so as to cause the planks to work loose, and at the point of the accident, where a small drain was dug under it from the penstock, it was covered with an oak plank, a kind of timber most liable to warp and twist and draw out the nails with which it was fastened, from the effect of being constantly soaked on the under side and exposed to the sun on the top.

The rule of law laid down by the court, though the same as enunciated in three or four exceptional cases (see 36 Barb. 226, which is in effect overruled in 39 Barb., p. 329; 5 Bosw., p. 497, where one of the judges dissented), is not based on any recognized principle of law, and does not accord with the general current of decisions.

Paid agents must in all cases exercise care and diligence in the discharge of their duties.

The city of Detroit, for a consideration, that is, the grant of power contained in its charter, undertakes to construct and maintain in proper condition its public ways, and imposes the expense of doing it on the public, as also the expense of paying two officers, the street commissioner and overseer of highways, for taking charge of them and seeing that all necessary repairs are made. The law, as laid down by the court, would relieve those officers as well as the city, which is responsible for them, of all diligence in the matter. They can wait until some indifferent person assumes the duty of bringing notice to them, or if no person chooses to take that trouble, then until the want of repair becomes so notorious that they ought to hear of it from common report: 16 N. Y., 161.

Neither, in cases where notice to the corporation is required, is it necessary that it should be brought home to a city officer. It is enough if it is known to inhabitants of the town or city, and has often been so held under statutes requiring it to be given: 7 Me. 442; 32 Id. 271; 40 Id. 176; 1 Mass. 153.

2. The question of negligence and whether the defect arose from the imperfect construction of the walk, or from causes which were apparent and might easily have been seen and guarded against, and if not, whether it was such that the city officers might with reasonable diligence have found it out and repaired it, should have been left to the jury instead of being virtually withdrawn from their consideration, as was done by the court: 35 N. H., 74; 40 Id. 410; 41 Id. 135; 13 Pick. 94.

The matter of diligence or neglect in such cases can not be reduced to a rule of law, as too great a diversity of circumstances exists in each case to permit it. A walk which would be sufficient in a remote part of the city, would be wholly unfit and unsuitable to be built in a central and frequented part.

And in proportion as the walk is central and much used, would the facilities be increased of finding out and repairing its defects. So that what might be diligence in one case would be gross neglect in the other.

Wm. Gray, for defendant in error:

1. The testimony was properly excluded. The state of the sidewalk three months after the accident was immaterial. It could have no tendency to show its condition at the time of the injury for the alleged defect; a loose plank might happen any day. The evidence showed it was frequently taken up and nailed down again. All evidence as to the condition of the walk at and about the time of the accident was received. The evidence offered could only be intended to prejudice defendants, by claiming subsequent negligence, which was immaterial. It would be as competent to show defective walks in other parts of the city. The farthest that the cases go, is that the admission or rejection of such evidence was in the...