Carver v. Detroit & S. Plank Road Co.

• Decision Date: 17 June 1886
• Citation: 28 N.W. 721,61 Mich. 584
• Parties: CARVER v. DETROIT & SALINE PLANK-ROAD CO.
• Court: Michigan Supreme Court

28 N.W. 721

61 Mich. 584

CARVER v. DETROIT & SALINE PLANK-ROAD CO.

Supreme Court of Michigan

June 17, 1886

Error to Wayne.

Parker & Burton, for plaintiff and appellant.

C.A Kent, for defendant.

CHAMPLIN J.

In this case a motion for a rehearing was made and granted. The opinion of the court rendered upon the first hearing was filed October 28, 1885, 25 N.W. 183, in which it was stated that it was not necessary to consider the extent of the duty of the defendant, either at common law or under its charter in this class of cases; that it is enough that, under the general statutes of this state passed in 1877, it was made the duty of the defendant to erect the barrier against the danger which overtook the plaintiff's husband at this place therein provided for; citing Laws 1877, pp. 135, 136 �� 5, 7. This statute was relied upon by the plaintiff upon the argument of the cause as creating the duty of defendant to fence or erect a barrier at the point in question, and the defendant's counsel objected to the plaintiff's right of recovery under that act, for four reasons stated by him in his brief, and argued upon the hearing, treating the law as in existence, but contending that it was inapplicable. The fact that the act in question was included in act No. 242 of the Session Laws of 1881 repealing a large number of statutes relating to highways and bridges, escaped at the time the attention of the counsel for the parties and the court also. After the opinion was filed, counsel for defendant, on a motion for a reheating, called our attention to the repeal of the act of 1877; and consequently we ordered a rehearing of the case. It is urged by counsel for plaintiff that the repeal of the act of 1877 does not relieve the defendant from the performance of a statutory duty, inasmuch as other statutes passed subsequently to that of 1877, and which are still in force, impose, in effect, the same duty upon defendant with respect to keeping the highway under its control in good repair, and reasonably safe and fit for travel.

The act of 1881 by which the several statutes were repealed, after enumerating some 19 different statutes, states, "which said several statutes and acts, and acts amendatory thereof, being either obsolete or superseded by Other legislation, are hereby repealed." Upon the same day this act was approved another act to revise and consolidate the highway laws was approved, the fifth section of chapter 5 of which provided that "it should be the duty of the commissioner of highways of each township to see that all plank or gravel road companies owning or controlling any kind of toll-road maintain their roads in as good and safe condition as he is required to keep the public highways of his township." Section 1 of the same chapter makes it the duty of the commissioner, when any public highway passes along the bank of any lake, river, or other water-course, by the falling or washing away of the bank, or from any other cause, shall become reduced to a width of less than 50 feet, to proceed, within 10 days after knowledge or notice of the defect, and examine the same; and, if he finds it to be less than 50 feet wide, to forthwith lay out, open, and widen and work such highway in and upon the adjacent land to the width of 50 feet. The next section provides as follows: "When any such highway is less than fifty feet wide, and more than thirty-five feet wide, the commissioner may in his discretion, instead of widening the same, erect near the edge of the bank, and thereafter maintain in good order, a substantial railing or fence, which shall be at least three feet high, and sufficiently strong to prevent persons, carriages, and animals from falling over such bank."

These provisions of the law undoubtedly apply to the defendant corporation, and create a duty which is incumbent upon the defendant to observe in cases falling within the provision of the first section. This section, by its terms, only applies to such public highways as were originally 50 feet or more in width, where they pass along a river bank, lake, or water-course, and by falling or washing away of the bank, or from other cause, have become reduced to a width less than 50 feet. The statute is penal, so far as it affects toll-roads, (chapter 5, � 5,)and cannot be extended by construction beyond the plain meaning of its terms. There is no evidence in the case that the toll-road of defendant, at the point where the accident occurred, has been reduced in width from the falling or washing away of the bank of the river, or from any other cause. On the contrary, the road at this point is shown to be of the same width that it has been for many years prior to the passage of the above statute, and that no change has occurred since the defendant company has had control of the road under its charter. The evidence shows, however, that the worked portion of the road at this point is less than 30 feet. The road bed is 24 feet in width, and as you proceed west there is a ditch on the left of this roadway, and a fence, and on the right there is a grass plat of four or five feet in width, and then a precipitous bank to the water of the river. It is such a place as the statute contemplates should, if it had become reduced in width, be either restored to the width of 50 feet, or be protected by a railing or fence. The legislature evidently considered a road so narrow as 35 feet wide, bordering upon the bank of a lake or river, unsafe for the public travel, without the protection of a railing or fence to prevent persons, carriages, and animals from falling over such bank. It is proper, therefore, to consider this. statute in connection with another now to be mentioned, for the purpose of affording some light upon the language imposing the duty upon those having control of public highways, at all times, to keep them in good repair, so that, they shall be safe and convenient for public travel.

By act No. 244 of the Session Laws of 1879 the legislature enacted "that any person or persons sustaining bodily injury, upon any of the public high ways or streets in this state, by reason of neglect to keep such public highways or streets *** in good repair, and in a condition reasonably safe and fit for travel by the township, village, city, or corporation whose corporate authority extends over such highway, street, *** and whose duty it Is to keep the same In good repair, such township, village, city, or corporation shall be liable to, and shall pay to, the person or persons injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent Jurisdiction." This act was entitled "An act for the collection of damages sustained by reason of defective public highways, streets, bridges, cross-walks, and culverts." It was in force when the repealing law of 1881 was passed, and was left unrepealed, evidently as one of the superseding acts referred to in act No. 242, and it also comes within the purview of act No. 243 of the Laws of 1881, and especially within the scope of chapter 5, � 5, above quoted; by which the duty is imposed upon toll-roads of maintaining their roads in as good and safe condition as one required of those officers having control of highways in townships. I have no doubt that the defects in highways covered by the act of 1879 extends to defects in construction, as well as defects through omission to repair, and to neglect to keep the public highways in a condition reasonably safe and fit for travel by day or by night; and unless it is so kept, it constitutes a defect in the highway, for which, if injury results, an action will lie.

It is quite immaterial, therefore, whether the statute of 1877 was repealed by the act of 1881, since the act of 1879 imposed the duty upon the defendant to keep its road in a condition reasonably safe and fit for travel. I have said that the legislature evidently intended to characterize public highways along the banks of lakes, rivers, and other water-courses, in which the worked part was less than 35 feet, as unsafe for travel, without a railing or fence; and in this case, as before stated, the evidence is that defendant's road was less than that width at the place where the accident occurred, and it is conceded that defendant had erected no railing or fence at that point. But in the absence of the statute, the duty was imposed upon the defendant, by the facts and circumstances of the case, to keep its highway in a condition reasonably safe and fit for the public travel. The defendant was the recipient of a valuable franchise. The highway was in its exclusive control, and it had the right of exacting from every person traveling with animals or vehicles over its road the toll or tribute authorized by its charter. Under such circumstances, the defendant was required, by its relations to the public, or that portion traveling over its road, to exercise due regard and caution for their safety, and to use reasonable safeguards for their protection. It was upon this principle that the defendant was held to be liable for neglecting to provide such safeguards to protect the traveling public in Goodale v. Portage Lake Bridge Co., 55 Mich. 413; S.C. 21 N.W. 866. Nor is it relieved...