Beall v. Township of Athens

• Decision Date: 27 June 1890
• Citation: 45 N.W. 1014,81 Mich. 536
• Court: Michigan Supreme Court
• Parties: BEALL v. TOWNSHIP OF ATHENS.

45 N.W. 1014

81 Mich. 536

BEALL v. TOWNSHIP OF ATHENS.

Supreme Court of Michigan

June 27, 1890

Error to circuit court, Calhoun county; FRANK A. HOOKER, Judge.

How. St. Mich. � 1442, provides that townships shall be liable for any damage sustained by any person because of their failure to keep their highways, bridges, etc., in good repair.

Miner & Southworth, for plaintiff in error.

Charles N. Legg, for defendant in error.

CHAMPLIN C.J.

There is a public highway in the township of Athens, leading from the village of Athens, in a southwesterly direction, into a county adjoining. In its course it crosses a low piece of ground called a "swale" for a distance of about 18 rods, and for a distance of about 12 rods the road-bed of the highway has by the township authorities been filled in to the height of from 4 to 6 feet. The embankment across this swale is from 9 to 14 feet in width on the top, and has a slope of about 45 degrees. In some places the water caused by falling rains or melted snow had washed the slopes, and formed small gullies in the shoulders of the road-bed, from 6 to 7 inches deep at the shoulder, and coming to the surface near the wheel tracks. In the month of December preceding the accident stated below, a person was hauling a load of logs upon runners along this piece of road, and near the middle of the swale found the sledding so poor that he rolled off one log from his load, which went down the embankment to the fence. This log was about 2 feet in diameter and 12 feet long. On the 1st day of February, 1888 as Ernest L. Beall with his wife and child were riding along this embankment in a buggy drawn by a young and spirited horse, the horse became frightened at the log, and "shied" to the opposite side of the road. Mr Beall, who was driving, took the whip from the socket, struck the horse, which sprung forward, went down the embankment upsetting the buggy, throwing its occupants out, and breaking Mr. Beall's arm, for which injury he brings suit for damages against the township. The defendant's witnesses upon the trial testified that by measurement the surface of the road-bed where the accident happened was 14 feet in width, and the embankment 4 1/2 feet high. The plaintiff's witnesses testified that at such place the road-bed on top was 9 feet in width, and the height of the embankment was from 5 to 5 1/2 feet in height. The plaintiff in his declaration, in setting forth the neglect of duty on the part of defendant, avers that upon and along either side of said embankment were the holes and gullies aforesaid, as well as other things calculated to frighten horses while being driven over and along said embankment, and, among other things, a log of great size, to-wit, 2 feet in diameter and 12 feet long, and at a point where the embankment was both high and narrow, and within plain sight of horses while being driven along the road-way above it, and where there were no guards or railing to prevent teams, wagons, and carriages from being thrown over and down said embankment; that along the entire length of said embankment there was on neither side any railing, fence, or guard of any kind to prevent horses, vehicles, and people, while passing along said highway upon the top of said narrow embankment, from being driven or thrown off and over the sides thereof, to the marshy swale below, all of which several defects, obstructions, and conditions, at the date last aforesaid, and at the township aforesaid, rendered said highway at the place unfit, unsafe, inconvenient, and dangerous to public travel, all of which the defendant well knew; and by reason of the wrong and unlawful conduct of said defendant in permitting and allowing the said highway, over and along said embankment, to be and remain narrowed to a width not exceeding 12 feet, and to remain at a height of not less than 6 feet, and in permitting the sides of said embankment to become and to remain narrowed to a width of 9 feet, upon which was said road-way, and the sides of said road-way to become gullied out and full of holes, and in allowing said bridge or culvert, and the entire length of said embankment, to remain and be wholly without any railing, fence, or guard of any kind to prevent teams, horses vehicles, and people from being thrown from off and over the side of said embankment to the ground below, a distance of 6 feet, at least, and in allowing holes and gullies, and other objects well calculated to frighten horses while being driven along said embankment, to remain at and along the sides of said embankment of said highway, across said marshy swale, on, to-wit, the 1st day of February, 1888, at the township of Athens aforesaid, the highway became and was unsafe, unfit, and inconvenient, and extremely dangerous for the public...