Bigelow v. City of Kalamazoo
| Decision Date | 13 October 1893 |
| Citation | 56 N.W. 339,97 Mich. 121 |
| Court | Michigan Supreme Court |
| Parties | BIGELOW v. CITY OF KALAMAZOO. |
Error to circuit court, Kalamazoo county; George M. Buck, Judge.
Action by Melville J. Bigelow, administrator of the estate of Julia E. Stuart, deceased, against the city of Kalamazoo, for damages for bodily injuries to deceased by defendant's negligence. Judgment for defendant. Plaintiff brings error. Affirmed.
Osborn & Mills, for appellant.
Edwin M. Irish, for appellee.
Plaintiff seeks to recover for an injury received by reason of an alleged defective crosswalk. Portage street was unpaved, and in wet weather very muddy. A street-car track occupied the center of the street. The walk was constructed of two planks four inches thick, and from twelve to sixteen inches in width. Between the planking a space of sixteen inches, and a space outside of the plank, had been paved with cobblestones. The rail in use by the street railway was the ordinary flat rail. The planking had been raised above the street grade so that at the car tracks the surface of the plank was two inches higher than the rail. Short planks had been laid between the rails. The ends of the planking were from two to four inches from the rail. In this condition it was found that the planking, being above the rail, interfered with the scrapers attached to the street cars, and the city authorities caused the ends of the planks to be chamfered off, commencing back several inches from the ends. Plaintiff's decedent stepped upon the beveled edge of one of these planks, her foot slipped, and she fell forward. The court submitted the case to the jury, and a verdict for the defendant resulted.
Upon the case made, defendant was entitled to a verdict, and it is unnecessary to consider the questions raised by plaintiff. The alleged defect in the crosswalk was part of a plan adopted, which was rendered necessary by existing conditions. Crosswalks are constructed for the convenience of pedestrians. This walk was elevated of necessity; otherwise, it would have been of little value. The railway tracks were necessarily lower than the walk. It became necessary either to cut off the planks to allow for the use of the scrapers, or to chamfer them down so as to allow the scraper to pass over them. By adopting the other plan, another and greater danger would have been presented. In all of our cities these conditions present themselves. Even in our most prominent thoroughfares, paved in the most approved manner, curbs must be carried, and at the crossings they are from two to six inches higher than the pavement. The curb must be left bare, and inattentive people be liable to stumble, or, as is frequently done, a plank is placed upon an incline, upon which pedestrians carelessly advancing are liable to slip. In either case there is the minimum of danger. The walk is not absolutely safe, but it cannot be said that it is not in a reasonably safe condition. The same is true of nearly all of our alley crossings. Gutters are necessarily left for the passage of water. These crossings are not absolutely safe, but they may be reasonably so. Neither streets, sidewalks, nor crosswalks can be constructed upon a dead level. People are liable to stumble over a Persian rug upon a parlor floor, and streets cannot be made less dangerous than drawing rooms. Crosswalks upon our unpaved streets are usually constructed in this identical manner. Street-car tracks are necessarily constructed at the street grade. Of necessity we must have gutters at these railway tracks. These gutters have abrupt edges, and must be wide enough to admit of wheels, the play of wheels, and the passage of the scraper, or the walk at the intersection of the walks must be chamfered off, as in the present case. To have shortened the planking, leaving holes large enough to admit a foot, would increase the danger rather than diminish it. The construction of a crosswalk in accordance with the requirements of the locality, adopting the means usually adopted, and which are best adapted for the convenience of the public, cannot be said to be negligent construction. Cities are not required to keep streets in a condition absolutely safe for travel. A crosswalk must be reasonably safe; reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street and all the varying conditions. The judgment should be affirmed.
This action was instituted in the circuit court of Kalamazoo for personal injury received by the plaintiff while passing over an alleged defective crosswalk. A trial was had, and verdict rendered in favor of the defendant during the lifetime of Mrs. Stuart. After suing out a writ of error in this court the action was revived in the name of the administrator. It was suggested upon the argument that the cause of action had abated by the death of Mrs. Stuart, but this suggestion is answered by a reference to the statute, which provides that "in all personal actions, the cause of which does by law survive, if there is only one plaintiff, or one defendant, and the sole plaintiff or defendant shall die after the commencement of the action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and...
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