McKellar v. City of Detroit
| Decision Date | 03 June 1885 |
| Citation | 57 Mich. 158,23 N.W. 621 |
| Court | Michigan Supreme Court |
| Parties | McKELLAR v. CITY OF DETROIT. |
Error to superior court of Detroit.
Brennan & Donnelly, for plaintiff.
Henry M. Duffield, for defendant and appellant.
On the tenth of January, 1884, plaintiff, in the evening, slipped on a cross-walk at the corner of Prospect and Division streets in Detroit, and fell and broke her arm. The occasion of her fall was claimed to be a small ridge of ice formed by the trampling of snow, and melting and freezing, until the surface was uneven. She recovered below, and the city brings error.
The case seems to have been fairly presented in all respects, so as to raise two questions closely connected which are--First, whether such a condition of things is such as is covered by the statute which gives a remedy for injuries on highways and cross-walks; and, second whether there is any liability without further notice than appeared here. Upon the question of damages the verdict was reasonable, and there are no other disputed points requiring attention.
It has been the settled law of this state that the right to recover depends entirely on the statute, and the main question is dependent on its construction. Under our constitution the title of an act is significant, and usually controlling in determining its scope, and in this case is of some importance. The body of the statute must reasonably harmonize with it, and in this instance there is substantial harmony. This law is entitled, "An act for the collection of damages sustained by reason of defective public highways, streets, bridges, cross-walks and culverts." Laws 1879, p. 223; How.St. �� 1442-1446. In the body of the act the action is given for injuries by neglect to keep these in good repair, and in a condition reasonably safe, and fit for travel, by the township, village, city, or corporation whose duty it is to keep the same in good repair. Section 1442. By section 1445 it is made the duty of townships, villages, cities, or corporations to keep in good repair, so that they shall be safe and convenient for public travel at all times. And power is given to levy such sum beyond the means formerly provided by law, not exceeding five mills on the dollar in each year, as will enable them to keep these easements "in good repair at all times." The liability is not to apply unless the municipality has had reasonable time and opportunity, after the ways become "unsafe or unfit for travel," to put them in "proper condition for use, and has not used reasonable diligence therein." Section 1443.
This statute covers all classes of municipalities, and undertakes to deal with duties common to all of them. It was not designed to put villages and cities under any different obligations than townships, in regard to the good repair of such ways as are to be kept in order. And, so far as our attention has been called to them, the statutes existing elsewhere have made no essential difference. Cities naturally have many more ways to look after, but the failure to do so involves no different considerations. The judge who tried this case expressed some doubt about it, but left it to be determined by appellate proceedings, should the jury think a case made out under his charge.
The decisions upon the liability of municipalities for winter obstructions to ways, although several cases have been decided, are not as numerous as might be expected if there were any general agreement that ice and snow were to be removed at the peril of the corporation. Mr. Dillon, in his work on Municipal Corporations, has very little to say about it, and the works on Negligence recognize the diversity of ruling under statutes and the local common law. The New England cases which were cited, and others which have been examined, appear to rest chiefly on ancient statutes which refer expressly to the duty of keeping ways clear of snow and ice. The later Massachusetts authorities are more guarded than the earlier ones, and have required stricter proof of negligence than formerly. The cases are very fully collected in 2 Eng. & Amer.Corp.Cas. 565, 571, 572, 579, 588; 4 Amer.Corp.Cas. 626, 627. They agree that there is no responsibility unless there has been such an accumulation as will amount to an obstruction of the way which is dangerous and they also agree that a city is not liable for the manner in which its walks and other structures and ways are planned. It may, perhaps, be said that if the duty is absolute to remove such...
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