Ellis v. McNaughton

• Decision Date: 11 July 1889
• Citation: 76 Mich. 237,42 N.W. 1113
• Court: Michigan Supreme Court
• Parties: ELLIS v. MCNAUGHTON.

42 N.W. 1113

76 Mich. 237

ELLIS v. MCNAUGHTON.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Jackson county; LOVERIDGE, Judge.

James W. Blakely, (Thos. A Wilson, of counsel,) for appellant.

Wm. H. Potts, for appellee.

MORSE J.

The plaintiff was injured on the 20th day of OCtober, 1885, at the city of Jackson, at a point where the sidewalk had been removed on Main street, adjoining land then owned by the wife of defendant. The defendant was engaged in the erection of a building upon a lot at the corner of Park avenue and East Main street. He testifies that he was superintending the work for his wife, but it is clear from his own testimony that he had the whole charge and control of the building, and the lot upon which it was being erected. He bought the materials and hired the men, and had the whole oversight and direction of the building. As he says, he acted as the agent of his wife. Enough of the sidewalk was removed while the building was going on to permit teams to go in from the street to the lot. The wagons, in passing through, made ruts. The plaintiff fell into one of these ruts in the night-time. The sidewalk, as shown by the record, was first removed by John McNaughton, a grandson of the defendant, who was hauling brick for the building by the thousand. This was done against the protest of the defendant, and his direction that it should not be done. He testifies that he ordered it put down again, and he thinks it was done, and then taken up again. He says "There was a time that I knew the walk was up. I knew they drove in and out there some. There was no real necessity of it being taken up further than to go across. They could cross with a light wagon, without any trouble." The walk was taken up some time in the summer, and remained so until after the plaintiff was hurt, when the defendant ordered it put down again. It is manifest from the whole evidence that although the defendant did not direct the taking up of the sidewalk, and would not in the first place consent to its being removed, still he knew it was removed and permitted it to remain torn up, when he had the power and authority to replace it, or have it laid down again. It is equally clear that his wife had nothing to do with it in any shape, way, or manner. The court instructed the jury as follows: "Gentlemen, if you believe from the evidence that the defendant had charge of the work of putting in the foundation and erecting the building upon the lot in question, and had the care of the premises to which the sidewalk belonged, and that the planks of the sidewalk were removed, although by some persons other than the defendant, and without his direction, but were removed for the purpose of hauling material upon the lot for the construction of the building, and that the defendant had control of the sidewalk, and knew that the opening through it was used for hauling building material upon the lot, and that the sidewalk was in fact out of repair, and in a dangerous condition at the time the accident occurred, and if you further find that the defendant was guilty of negligence in permitting it to be and remain open and out of repair, and in a dangerous condition, and in consequence thereof the plaintiff was injured without fault on her part, then I instruct you that the defendant would be liable, although the title to the property was in his wife, and the defendant was acting for her in the erection of the building." The jury found for the plaintiff, assessing her damages at $350.

There are but two assignments of error in this court First, that the court erred in not directing the jury to find for the defendant; and second, that the...