Baker v. City of Grand Rapids

• Decision Date: 05 January 1897
• Citation: 69 N.W. 740,111 Mich. 447
• Court: Michigan Supreme Court
• Parties: BAKER v. CITY OF GRAND RAPIDS.

69 N.W. 740

111 Mich. 447

BAKER v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

January 5, 1897

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Action by Fred J. Baker, by next friend, against the city of Grand Rapids, to recover for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

Henry J. Felker (Taylor & Eddy, of counsel), for appellant.

McKnight & McKnight, for appellee.

MONTGOMERY, J.

In 1890 the defendant city contracted with one Tennis to construct a sewer in the center of South Lafayette street, together with manholes and catch-basins, or sand traps. These catch-basins were located between the gutter and the sidewalk, and the excavation for the construction of the same was 7 feet 4 inches in depth, with a diameter of 5 feet 4 inches. The contractor entered upon the construction of this work, and, after the excavation of one of these openings for a catch-basin, on the evening of November 17, 1890 plaintiff, then a lad of 15 years, while on an errand to a grocery store, and crossing Lafayette street in a diagonal direction, fell into this opening, and received serious injuries, for which he recovered in this action. The defendant brings error, and relies, in its argument, upon four grounds of error, principally: (1) Error in admitting proof of a pathway running diagonally across Lafayette street, in the course taken by plaintiff; (2) that there was no sufficient proof that the basin was left unguarded; (3) that the plaintiff was guilty of contributory negligence; and (4) that no notice of the failure to guard the opening was shown.

1. Testimony was introduced tending to show that it was customary for people to cross the street in the direction taken by the plaintiff, and that a path had been worn across the street at this point. We think this testimony could not have damaged the defendant, as it was the right of the plaintiff to cross the street at any portion of the traveled way, and he was not confined to the cross walk. Thomp. Neg. � 387; Lincoln v. City of Detroit, 101 Mich. 245, 59 N.W. 617. The fact that others, in considerable numbers, took this same course, bore on the question of plaintiff's care on the occasion in question.

2. The defendant's testimony tended to show that, when the men quit work on the day in question, they placed barriers around the hole, and left a lighted lantern there. The testimony as to the barriers being there was not wholly undisputed, but, in addition to this, there was testimony tending to show that the lantern did not contain oil enough so that the lantern could be kept lighted. Two...