Beattie v. City of Detroit

• Decision Date: 27 July 1904
• Court: Michigan Supreme Court
• Parties: BEATTIE v. CITY OF DETROIT.

100 N.W. 574

137 Mich. 319

BEATTIE v. CITY OF DETROIT.

Supreme Court of Michigan

July 27, 1904

Error to Circuit Court, Wayne County; Henry A. Mandell, Judge.

Action by Annie Beattie against the city of Detroit. From a judgment for plaintiff, defendant brings error. Affirmed.

P.J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellant.

Orla B Taylor, for appellee.

MOORE C.J.

This action was brought to recover damages for injuries sustained by reason of the unsafe condition of the street at the corner of Jefferson and Field avenues on the evening of July 26 1901. There is a street car track upon Field avenue, over which the cars of the cross-town line are operated, the cars coming from the north and turning westerly on Jefferson avenue. The usual and ordinary place for stopping the cars to let off passengers was upon Field avenue, just before the cars turned westerly. For some time prior to the night of the accident, the portion of Field avenue between the west track and the west curb had been in process of repavement with cedar blocks upon concrete foundation. The method of laying this pavement is as follows: After excavation to the proper depth, the concrete is laid. Upon this is placed a thin cushion of sand, upon which round cedar blocks, from four to nine inches in diameter, are placed. A binder course of gravel is then thoroughly tamped into the interstices between the blocks, and hot tar is poured over the gravel. The tamping is to make them solid, so that the blocks won't raise. The tar is supposed to stop the water going through, and hold the blocks together. The work is completed by a top dressing of sand. For several days the work had been progressing in a southerly direction toward Jefferson avenue, and on the day preceding the night of the accident, according to the witnesses for defendant, the blocks were all laid, up to the line of the asphalt pavement on Jefferson avenue. On account of a street car parade, which was to start from near this point that evening, the blocks were laid temporarily; the contractor not having gravel enough to complete the last 10 or 15 feet. It was the claim of plaintiff, and is not seriously disputed, that this portion, 10 or 15 feet from the corner, was not tamped, the gravel and the tar were not in, and the top dressing was not on; that no attempt was made to barricade the street and prevent travel over this unfinished pavement--on the contrary, travel was invited; that no lights were placed there to guard the place. The plaintiff, accompanied by her son, aged six years, arrived at the corner in question, upon a cross-town car, shortly before 12 o'clock at night. The car stopped at the usual place, and plaintiff alighted carrying her child in her arms. The car immediately started forward, and proceeded down Jefferson avenue. It was the claim of plaintiff that the pavement looked all right; that the car passed on, and she was left in total darkness; that she started toward the westerly curb, but her feet became tangled in the blocks, which were all afloat because of a rain which had fallen earlier in the evening, and she stumbled and fell, sustaining serious injuries. The claim of plaintiff is the defendant was guilty of negligence in leaving the paving in this incomplete condition, so that a dangerous condition of the street was inevitable in case of rain, the weather being threatening, and in not providing proper lights and barricades to protect the public from the danger. The case was submitted to the jury, and a verdict rendered for plaintiff. The case is brought here by writ of error.

The counsel for appellant discusses five propositions: (1) The storm and condition of the highway; (2) service of notice on the corporation counsel; (3) the sufficiency of the notice; (4) damages and the mortality table; (5) operation and cost of operation. For convenience, we will consider these in the same order.

Counsel for the city insist that the rule requiring either actual or constructive notice of a defective street, in order to hold the defendant liable, has not been met. His position, quoting his own language, is: 'The statute permitting this class of actions does not contemplate that a pavement of any particular character shall be laid, but only that it shall be reasonably fit and safe for travel. While it is admitted that the pavement, for the space of ten or fifteen feet, had not been finished as it was intended to permanently remain, yet it had been laid for the very purpose of accommodating the crowd that was expected to be drawn by this street car parade. These being the conditions, we insist that, before the city can be held liable for any damages resulting from an accident caused by any subsequent defect in this street, that it must have had actual notice, as the time was too short, under all decisions, for constructive notice.' Citing Wakeham v. St. Clair, 91 Mich. 15, 51 N.W. 696, and other cases. An examination of the cases cited shows they relate to finished roadways in which a defect afterwards occurred, except Beattie v. Detroit, 129 Mich. 20, 88 N.W. 71, where temporary plank bridges were used. In that case the city was held liable for the negligence of the contractor. Justice Hooker, speaking for the court, said: 'The law imposes upon the city the duty of keeping its ways in a condition reasonably safe for public travel. Necessarily there must be times when they cannot be in good condition--as when they are undergoing repairs--and at such times travelers must heed the obvious dangers. But the city is not absolved from all care and responsibility at such times, nor can it absolve itself by turning the highway over to a contractor. As between it and the public, it must see that such portion of the way as is open for use--at least where it is so under the terms of its contract with the contractor--is kept in a condition reasonably safe under the circumstances; and, if it should be kept open under the contract, it should see that the contract is performed in that respect. In other words, a city cannot, by merely contracting with somebody that he will keep the street in a condition reasonable safe (whether the contract specifies the method or not), relieve itself from the statutory liability, and impose it upon another. Thus a contractor may promise to keep a trench fenced, or signal lamps in it at night, and do neither. One injured in consequence is not without remedy against the city, for the statutory responsibility rests there. Pettengill v. City of Yonkers, 116 N.Y. 558, 22 N.E. 1095, 15 Am. St. Rep. 442; Monje v. City of Grand Rapids, 122 Mich. 645, 81 N.W. 574; Baker v. City of Grand Rapids, 111 Mich. 447, 69 N.W. 740; 2 Dill. Mun. Corp. � 1027, and note; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; Southwell v. City of Detroit, 74 Mich. 438, 42 N.W. 118.' In order to suspend the duty imposed by statute to keep its streets which are open to public travel in good repair for that purpose, a city, while grading and paving a street under the power conferred by its charter, must close to public travel that portion thereby rendered unfit or unsafe, Southwell v. Detroit, 74 Mich. 438, 42 N.W. 118; Alexander v. Big Rapids, 76 Mich. 282, 42 N.W. 1071; Walker v. Ann Arbor, 111 Mich. 1, 69 N.W. 87. Upon this branch of the case the judge charged the jury: 'If the city of Detroit left the street at 6 o'clock in the evening in a condition that was proper and fit to be traveled over by horses, bicycles, wagons, and such, at that time, it does not necessarily follow that it was left in a reasonably safe condition. Something more, in my opinion, is required of the city. The city is required to leave that street in such condition that it will remain in the condition in which it was put; that is, if it was put in a condition at 6 o'clock reasonably safe and fit for public travel at that time, then the further duty falls upon the city to consider what the elements are, and to consider what is likely to occur during the night; and they are required by law, in my opinion, to put it in such a condition that it will stand or withstand the elements or conditions that might reasonably and ordinarily be expected at that season of the year. So, gentlemen of the jury, the principal fact in this case left for you to determine is, did the city leave that street in a condition in which it would be expected it would remain in a condition that was reasonably safe? Did they do all that prudence and foresight would demand of them? In other words, if the rain and storms that might be expected, if you believe that they might be expected at that time of the year, would put that street out of repair and render it dangerous, then, gentlemen of the jury, in my opinion, negligence would be chargeable against the city; but if you find that a storm of unusual severity, or a storm that might not be expected under ordinary circumstances and conditions at that time of the year, came up, then it is something human foresight cannot see or prevent, and that would be an extraordinary visitation of the elements, and the city of Detroit would not be, in such a case, chargeable with negligence.' We think this a proper instruction, under the facts disclosed by the record.

The service of notice and its sufficiency may be considered together. The accident occurred July 26, 1901. The statute provides that 'notice shall be given in writing within three months from the time of such injury to the head of the law department or to his chief assistant.' The corporation counsel is the head of the law department of the city. At the time of the accident, Mr. Tarsney was corporation counsel. On August 3, 1901, Conely & Taylor wrote the following letter to Mr. Tarsney, addressing him in his...