Beaudin v. Bay City

• Decision Date: 19 April 1904
• Citation: 136 Mich. 333,99 N.W. 285
• Court: Michigan Supreme Court
• Parties: BEAUDIN v. BAY CITY.

99 N.W. 285

136 Mich. 333

BEAUDIN v. BAY CITY.

Supreme Court of Michigan

April 19, 1904

Error to Circuit Court, Bay County; Theodore F. Shepard, Judge.

Action by Ernest Beaudin, by his next friend, Alfred Baudin, against the city of Bay City. Judgment for plaintiff. Defendant brings error. Reversed.

Brakie J. Orr, for appellant.

Lee E Joslyn, for appellee.

MONTGOMERY J.

This is an action to recover damages for an injury resulting to the plaintiff by reason of a defective sidewalk within the city. The plaintiff recovered a judgment of $2,500, and the case is brought before us for review by writ of error.

The appellant's counsel states the principal question to be whether or not playing upon the sidewalks of a public street by children is making use of such sidewalks for 'public travel,' as contemplated by the statute making cities liable for injuries from defective sidewalks. The evidence on the trial disclosed that on the afternoon of October 14, 1901, plaintiff, after school, returned to his home, and from there went out into the street to play; that while the boys were playing in the street, a colored boy named Charley Cross went along on the opposits side of the street, and some of the testimony tended to show that some of the boys with whom plaintiff was playing called out 'catch him,' and that the boys started to run after him. There was other testimony tending to show that the boys were running to see a runaway. While running, the plaintiff as the testimony conduced to show, caught his foot in a hole of the sidewalk, was thrown, and received the injuries in question. The defendant asked an instruction in effect that, if the plaintiff was injured while playing, he was not in the exercise of the right of travel, and that he could not recover. The court refused this request, but did instruct the jury that if at the time the plaintiff was injured he was upon the sidewalk for any purpose not connected with or incidental to lawful travel he could not recover. He also charged the jury that the plaintiff had a right to be on the streets, that he had a right to run with the boys and play, and that he had a right to run across the sidewalk, if he did so with reasonable prudence and care.

The question whether the plaintiff was in position to assert that his use of the street was a lawful use is presented in two aspects. It is first said that in playing he was violating an ordinance of the city. This ordinance provides that no person shall play any game of nine or tenpins, ball, wicket, or other games in any street, alley, or other public space. We think the court rightly construed this ordinance as prohibiting only other games of like kind and character as those specifically mentioned in the ordinance, and that, so construed, the ordinance has no application to this case.

The important question in the case is whether the plaintiff is within the protection of the statute. Our statute provides (section 3441, Comp. Laws) that 'any person or persons sustaining bodily injury upon any of the public highways or streets in this state by reason of neglect to keep such public highways or streets, and all bridges sidewalks, crosswalks and culverts on the same, in reasonable repair and in condition reasonably safe and fit for travel,' may recover, etc. It is the contention of defendant that, where a statute imposes a duty and prescribes a remedy, the remedy is to be limited to the violation of such duty as is imposed by the statute. This proposition is well established by authority. It is contended further that the statute in question does not impose the duty of providing a playground for children, and that therefore an injury resulting to one using the public streets for a playground is not such an injury as the city is made liable for. The leading case upon this subject is the case of Blodgett v. Boston, 8 Allen, 237. In that case the evidence disclosed that the plaintiff was playing on the sidewalk 'old man in the castle,' and received an injury for which he sued. The court held that he could not recover. But the court said: 'We by no means intended to say that a child who receives an injury caused by a defect or want of repair in a road or street, while passing over or through it, would be barred of all remedy against a town merely because, at the time of the occurrence of the accident, he was also engaged in some childish sport or amusement. There would exist in such a case the important element that the person injured was actually traveling over the way. But this element is wholly wanting in the case at bar. * * * It is to this precise case that we confine the expression of our opinion.' It may be open to doubt as to whether the ruling in that case should be followed in construing our own statute, as there is a difference in the two statutes. However this may be, it is certain that the Massachusetts court has found frequent occasion to note distinctions which are exceedingly narrow. For instance, in Gulline v. Lowell, 144 Mass. 491, 11 N.E. 723, 59 Am. Rep. 102, a child seven years of age, who was walking with his father on a plank footway upon a bridge which the city was bound to keep in repair, stepped aside to clasp in sport a post forming part of the bridge, and fell through a hole in the planking into the water and was drowned. It was held that he was a traveler, notwithstanding that at the very moment of the injury he was engaged in sport. So it was held in Bliss v. South Hadley, 145 Mass. 91, 13 N.E. 352, 1 Am. St. Rep. 441, that it was competent for the mother to send a child, one year and ten months old, into the street in charge of his brother, eight years old, for air and exercise, and that an injury occurring while they were standing watching other boys play, if occurring through fault of the city, was actionable; the court saying that the fact that they stopped for a few moments to watch other boys at play was one of the natural and ordinary incidents of travel, and...