Alberts v. Village of Vernon

• Decision Date: 26 July 1893
• Citation: 55 N.W. 1022,96 Mich. 549
• Court: Michigan Supreme Court
• Parties: ALBERTS v. VILLAGE OF VERNON.

55 N.W. 1022

96 Mich. 549

ALBERTS v. VILLAGE OF VERNON.

Supreme Court of Michigan

July 26, 1893

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by Helen M. Alberts against the village of Vernon for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error. Affirmed.

Watson & Chapman, for appellant.

A. L Chandler, (S. F. Smith, of counsel,) for appellee.

HOOKER C.J.

The plaintiff was injured by falling on defendant's board sidewalk, being tripped by a loose board. The proofs show that the walk was old, and the stringers so rotten that they would not hold nails driven into them. Evidence was given tending to show that no repairs had been made upon said walk for more than a year; and William Shoemaker, a witness for plaintiff, testified to being tripped by a loose board in said walk some eight months before the accident to the plaintiff. The court admitted this, against defendant's objection and exception, as tending to show a long continuance of the defective condition of the walk, from which it might be inferred that defendant had notice of its worn and rotten condition. No error was committed in this. Dotton v. Albion, 50 Mich. 129, 15 N.W. 46; Corcoran v. City of Detroit, (Mich.) 54 N.W. 692; Moore v. Township of Kenockee, 75 Mich. 332, 42 N.W 944; Campbell v. City of Kalamazoo, 80 Mich. 655, 45 N.W. 652; Girard v. City of Kalamazoo, 92 Mich. 610, 52 N.W. 1021. To view preceding link please click here That the witness fell, had no especial significance, except in connection with the fact that the boards were loose. In connection with the proof that no repairs were made subsequently, and before the accident to plaintiff, it was material.

The same witness stated that he was employed by the city to take up the walk soon after the accident, and that he found the stringer rotten, and had no difficulty in lifting the boards therefrom. It is said here that the fact that the city caused the walk to be taken up and repaired was not competent evidence to show that the walk was in bad condition. This point does not appear to have been made below, and the record indicates that the removal of the walk, affording the opportunity to learn particularly its condition, was the point aimed at. Incidentally, it was drawn out that it was removed at the instigation of defendant. No error was committed in receiving this testimony.

Defendant's first request was as follows, viz.: "In this case, your verdict will be for the defendant." An assignment of error is made in the same language. This is not a good assignment of error, under rule 12, which requires assignments of error to be special. It does not point out the reason for the request, and leaves the court and opposing counsel to ascertain as best they may whether the case is not defective in some particular. So far as we discover, however, the court was justified in submitting the case to the jury.

In discussing the question of notice, the trial judge said to the jury: "The notice required in the proviso may be actual notice to the street commissioner, or by personal knowledge of such officer, or by the existence of the defects complained of being of such long standing that it might and ought to have been known, and that the want of knowledge may under given circumstances, imply want of due care; and, in the absence of proof of actual knowledge, you will determine from all the evidence in the case whether the...