Burgdorf v. Holme-Shaw

• Decision Date: 13 April 1959
• Docket Number: HOLME-SHA,N,No. 15,15
• Citation: 356 Mich. 45,96 N.W.2d 164
• Parties: , 75 A.L.R.2d 561 Cecil BURGDORF, Plaintiff and Appellant, v. Normanettie Holme-Shaw, John Elwell, Eva Elwell, and City of Saginaw, a municipal corporation, Defendants and Appellees. Appeal as to Defendant City of Saginaw Only.
• Court: Michigan Supreme Court

Page 164

96 N.W.2d 164

356 Mich. 45, 75 A.L.R.2d 561

Cecil BURGDORF, Plaintiff and Appellant, v. Norman HOLME-SHAW, Nettie Holme-Shaw, John Elwell, Eva Elwell, and City of Saginaw, a municipal corporation, Defendants and Appellees Appeal as to Defendant City of Saginaw Only.

No. 15.

Supreme Court of Michigan.

April 13, 1959.

Doozan, Scorsone & Trogan, Saginaw, for appellant.

W. Vincent Nash, City Atty., William A. Boos, Jr., Asst. City Atty., Saginaw, for appellee City of Saginaw.

Before the Entire Bench.

DETHMERS, Chief Justice.

Plaintiff appeals from judgment non obstante veredicto for defendant city. He sued for damages resulting from injuries sustained when he rode, after dark on a bicycle, into a clothesline stretched across a public sidewalk.

Under C.L.1948, § 242.1 (Stat.Ann. § 9.591), defendant city is liable to pay just damages to any person injured by reason of its neglect to keep its sidewalk in condition reasonably safe for travel.

In Jablonski v. City of Bay City, 248 Mich. 306, 226 N.W. 865, 866, it was held that 'a wire strung dangerously across a walk', even though by one not connected with the city government, would be 'an actionable defect in the walk', for which a city might be held liable under the above statute 'because the street then would not be in a condition reasonably safe and fit for travel.'

There may be no recovery against defendant city for damages resulting from the unsafe condition of its walk caused by another, unless it had actual or constructive notice of the condition. Moblo v. City of Lansing, 243 Mich. 465, 220 N.W. 890. In the instant case the city did not have actual notice.

C.L.1948, § 242.7 (Stat.Ann. § 9.597), provides:

'* * * where a notice is necessary, in order to make such * * * city liable, either actual or constructive notice shall be sufficient.'

One controlling issue is presented on this appeal. Was the question whether defendant city had constructive notice of the unsafe condition of its sidewalk and a reasonable time in which to correct it before injury to plaintiff a question of fact for the jury?

Viewing the testimony, as we must, in the light most favorable to plaintiff, the pertinent facts are: for 18 years prior to plaintiff's injuries, occupants of the premises at the location in question had been stretching a clothesline from a utility pole on the street and across the public sidewalk to their house; they had been doing this on wash days, averaging twice a week in the summer time; on those occasions, the line would be up and across the walk and have clothes on its most of the day; anyone driving by on that street could easily see the clothesline with clothes on it; city police officers occasionally drove by on that street; the line was 5'3"' above the sidewalk on the evening in question; many persons in the area had seen the line up in that location and knew that for a number of years it was being, and had been, stretched there on wash days. A police officer of defendant city testified that, had he seen the line there at any time, it would have been his duty to take care of it, to report it to his superior, and to order the adjacent property owner to remove it.

We agree with defendant city that it cannot be said that the presence of the line there, intermittently, constituted the existence of a defect for 30 days or longer so as to give rise to a conclusive presumption that the city had notice of it under C.L.1948, § 242.6 (Stat.Ann. § 9.596). Furthermore, this is not a case in which the unsafe condition was due to defects in the original construction of the walk, with respect to which no notice to the city isrequired, under said section of the statute, before recovery can be had.

Defendant city further contends, however, that because the line was not up constantly, but only intermittently and, on the evening in question, only since morning, it must be held under the facts in this case that, as a matter of law, it did not have constructive notice and a reasonable time in which to correct the unsafe condition. This, apparently, was the view of the trial court, prompting its order for judgment non obstante veredicto for defendant. With this we do not agree.

Defendant points out that the street in question is unpaved, that the walk on which plaintiff was riding does not extend much further ahead, that the area is sparsely populated, that the scene of the accident is a considerable distance from the more heavily travelled, nearest intersecting street, and that the character of the neighborhood is such that it requires the minimum of surveillance. Defendant complains that it would have required constant...