Alexander v. City of Big Rapids

• Citation: 42 N.W. 1071,76 Mich. 282
• Court: Michigan Supreme Court
• Decision Date: 11 July 1889
• Parties: ALEXANDER v. CITY OF BIG RAPIDS.

42 N.W. 1071

76 Mich. 282

ALEXANDER v. CITY OF BIG RAPIDS.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Mecosta county; PALMER, Judge.

For statement of the case and opinion on former appeal, see 38 N.W. 227.

CHAMPLIN and CAMPBELL, JJ., dissenting.

MORSE J.

In this case the court submitted to the jury the question whether the injury was received on the sidewalk or the cross-walk. The jury found that the place where the accident occurred was where the sidewalk was torn up, but the court instructed the jury that the six feet of walk filling the corner of Pine street and Rose avenue was, according to the custom and practice of the city, sidewalk, and not cross-walk, as it was required to be built by the lot-owner and not by the city. This would have undoubtedly been correct, had it not been for the action of the city in tearing up and removing this walk and excavating under it, in the improvement of Rose avenue making a portion of it, at least, a part of Rose avenue, as excavated and cut down. This was permitted so to remain for a long time, and the indications from the record are that it was intended to be left so permanently. The jury must have found that, because the plaintiff slipped within this six feet, which had been sidewalk, which slipping caused his fall, thereby his injury was received from the defect in a sidewalk and not in a cross-walk, and therefore the plaintiff could not recover. But the allegation of the declaration also, recites that plaintiff fell into the excavation; that the defendant "wrongfully, unjustly, and negligently allowed said cross-walk to continue in said dangerous, unsafe, and unfit condition, and negligently permitted the said cross-walk to remain so defective and badly out of repair, and negligently left said cross-walk in such an unguarded condition, and without proper and appropriate protection or signals, that by means of the premises, and for want of proper and sufficient care in keeping said cross-walk in safe condition, and in allowing said excavation aforesaid to remain open and unguarded, the said plaintiff, who was passing upon and along said cross-walk, as he had a right to do, and using due and reasonable care, fell into said excavation so in and under said cross-walk aforesaid, and thereby the plaintiff was greatly injured and hurt,"-and the testimony is undisputed that Alexander was found unconscious in the excavation.

It seems to me that the declaration sufficiently alleges that the injury was the joint product of the tearing up of the cross-walk and the excavation in the street under it, and the evidence is undisputed that before this grading and excavating of Rose avenue there was, and had been for some time, a cross-walk extending across Rose avenue at this point.

I cannot agree with Mr. Justice CHAMPLIN, that this case, in respect to this cross-walk, is governed by Williams v. Grand Rapids, 59 Mich. 51, 26 N.W. 279. Detroit v. Beckman,

34 Mich. 125, and other cases cited by my brother CHAMPLIN. While the city of Big Rapids was improving Rose avenue, or even after the improvement had been completed, it had no right to leave Pine street, which crossed Rose avenue, open to travel, unless the crossing of those two streets was made reasonably safe and fit for travel. It was the duty of the city either to make the descent from Pine street into the excavation on Rose avenue safe, or, if it must necessarily be left dangerous to travelers in the night-time, without warning, to provide by barriers, lights, or otherwise some precaution against accidents like the one here, which the record shows was liable to happen at any time, in the condition in which this excavation was left. See Southwell v. Detroit, ante, 118.

This is not an action based on a defective cross-walk where none existed, but the allegation is that a cross-walk which before that had existed, had been negligently torn up, and an excavation made under it in the highway, and that this state of things was negligently permitted to exist, and did exist, at the time of the injury, and was the cause of it.

The circuit judge, in my opinion, erred in confining the jury too closely to the place where the plaintiff slipped in his fall. If it were a fact that he slipped upon a portion of the walk which was a sidewalk, yet if he thereby fell into this excavation, which was in Rose Avenue, and under the place where the cross-walk was before it was torn up, and the injury received was occasioned by the fall into this excavation, the fact of the starting of his fall happening on the sidewalk would not preclude his recovery. I further think that when the city removed and tore up this sidewalk, and made an excavation in the place where it had been, by this excavation making it a part of Rose avenue, and permitted it so to remain, they, in effect and in law, caused it to be a part of the street, and that if the slipping and falling of plaintiff were caused by it he could recover, if without fault himself, under the declaration filed in this cause. When this case was here before (see 38 N.W. 227) we held that the city would be liable for injuries received by falling into this excavation left by the city after taking up the cross-walk and grading the street, although there was no cross-walk there at the time of the injury.

We see no difficulty in the way of recovery by the plaintiff, as the proofs stand in the record before us, if the jury should find that the plaintiff was injured without fault of his own. The negligence of the city is apparent. The judgment must be reversed, and a new trial granted.

SHERWOOD, C.J., and LONG, J., concurred with MORSE, J.

CHAMPLIN J., (dissenting.)

On the 1st of January, 1887, between the hours of 7 and 8 in the evening, as the plaintiff was traveling eastwardly along Pine street, in the city of Big Rapids, he fell at the intersection of Pine street with Rose avenue, and suffered severe injuries. He alleges in his declaration that he received his injuries by falling upon the cross-walk across Rose avenue, while exercising due care on his part, and that the defendant had torn up a cross-walk which was previously there, and had excavated the earth to the depth of, to-wit, five feet, and had left the sides of the excavation very abrupt and precipitous, so that the cross-walk at that point was in a dangerous, unsafe, and unfit condition for persons to pass and repass over it, and that it had been in that unfit condition for a long time before he received the injury complained of; and defendant had neglected to place any protection or guard about the excavation, or any light or signals to notify the public of the unsafe and unfit condition of the cross-walk for public travel.

It appears from the record that Rose avenue, where it crosses Pine street, lies along a side hill, and that the city of Big Rapids graded and improved the avenue in the summer and fall of 1886; that previous to such improvement there had been a cross-walk on the north line of Pine street across Rose avenue, and also that there was a plank sidewalk along the north side of Pine street; that this sidewalk extended into Rose avenue on the west side from six to eight feet, and the cross-walk connected therewith extended across Rose avenue; that in making the improvement of Rose avenue this cross-walk and the sidewalk had been taken up, and also a portion of the walk in front of the lot adjoining Pine street, a distance back from Rose avenue about eight feet. In making the improvement the city excavated the earth along the west side of Rose avenue, and where it crosses Pine street to the west line of the avenue, to the depth of from 28 inches to 5 feet, according to the testimony of different witnesses. This excavation, when completed, was nearly perpendicular. The street commissioner of the city, who had charge of grading Rose avenue, after the grading was completed caused the approach on the west side, at the intersection of Pine street, to be sloped down so as to permit teams and pedestrians to pass along Pine street. This was done with a scraper, and the slope or inclination commenced back from the west line of Rose avenue, upon the sidewalk, which had been removed a distance of from three to six feet, and the dirt filled in upon Rose avenue about one-half the width of the lawn, or four feet from the west line of the avenue. The depth of fill at the west line of Rose avenue was about 18 inches, making the slope about a foot and a half in four feet. Later in the fall some one, but who it does not appear, cut some steps in this slope, and placed plank therein, and such seems to have been the condition of the place at the time of the accident. The city surveyor took some levels just previous to the trial, not from any knowledge which he had of the situation of the place of the accident at the time it occurred, but from points shown him by the street commissioner and two other persons, who claimed to be cognizant of the situation, and who were sworn and testified as witnesses. They showed the surveyor a point eight feet west from the west line of Rose avenue, where they claimed the level of the sidewalk was at the time of the accident, and the surveyor testified that this point was four feet and nine inches higher than the center of Rose avenue as graded; that the west sidewalk of Rose avenue is eighteen inches higher than the center of the avenue as graded, and that the difference in...