Cabana v. City of Hart

• Decision Date: 03 April 1950
• Docket Number: No. 26,26
• Citation: 42 N.W.2d 97,327 Mich. 287,19 A.L.R.2d 33
• Parties: , 19 A.L.R.2d 333 CABANA v. CITY OF HART.
• Court: Michigan Supreme Court

Page 97

42 N.W.2d 97

327 Mich. 287, 19 A.L.R.2d 333

CABANA v. CITY OF HART.

No. 26.

Supreme Court of Michigan.

April 3, 1950.

Campbell & Campbell, Manistee, for plaintiff and appellee.

Mitts & Smith, Grand Rapids, for defendant and appellant.

Before the Entire Bench.

CARR, Justice.

Plaintiff's decedent was killed as the result of coming in contact with a lamp post maintained by the defendant municipality as a part of its street lighting system. The accident happened at approximately 1 o'clock in the morning on October 27, 1946. Clarence Cabana, a young man 16 years of age at the time, was in Hart accompanied by a friend of about his own age. For some reason he laid his hands on the post in question, which evidently was charged wiht electricity. Death was instantaneous, or practically so.

The post was hollow, of metal construction, either steel or cast iron, was approximately 8 feet in height, and was set in the sidewalk on the south side of Washington street in proximity to a hotel. It was fastened to the cement by means of bolts. An opening at the base of the post permitted access for the purpose of detaching the post from the base. Such opening was designed to be covered by a metal plate, which was off at the time of the accident and prior thereto, thus permitting moisture to enter the post. The electric wires were carried through the streets, from post to post, by underground conduits, and extended in each post to the light at the top.

Plaintiff brought this action under the provisions of the death act of the State as amended by P.A.1939, No. 297, C.L.1948, § 691.581 et seq., Stat.Ann.1949, Cum.Supp. § 27.711 et seq. The declaration alleged that it was the duty of the defendant to have the metallic post in question properly safeguarded, to maintain all parts of the street lighting system in a reasonable state of repair, to make inspections of the installations, and to replace all wires and other parts found defective. It was further averred that the post with which plaintiff's decedent came in contact was not properly maintained, that the fastenings at the lower end of the post had become worn and out of repair, that it was insecurely connected with the base, and that it was not properly protected against the flowage of electric current. It was the claim of plaintiff that the electrocution of her decedent resulted from the failure of defendant to properly safeguard and maintain the metal lamp post in question, and the wires therein. Defendant by answer denied negligence on its part, and alleged further by way of affirmative defense that in the operation of its street lighting system it was engaged in the performance of a governmental function and therefore immune from liability because of negligence on the part of its agents or employees.

During the trial before a jury in circuit court counsel for defendant moved for a directed verdict, claiming that no negligence on the part of the municipality was shown by plaintiff's proofs, and that notice or knowledge of the alleged defective condition had not been established. Said motion was renewed at the end of the proofs and was taken under advisement by the trial judge. The case was submitted to the jury under a charge that there could be no recovery unless plaintiff had established a breach, on the part of defendant, of its statutory duty to maintain its streets and sidewalks in a condition reasonably safe for public travel. The following excerpt from the charge clearly indicates the theory of the plaintiff's alleged cause of action: 'Now, as we apply that statute and that expression of law which I have just read to you to the facts in this case, it means that on the 26th of October or the early morning of October 27th, that it was the duty of the willage of Hart to keep in reasonable repair so that the same should be reasonably safe and convenient for public travel the sidewalk at the particular place where this pole stood. And if this pole as it then and there existed and stood at the time of the accident was a dangerous instrumentality and as such known to be that by the city or village, then there follows an act of negligence upon which liability can be predicated. But if there was no knowledge on the part of the city of the danger existing in that pole, then the city cannot be held liable unless you find in addition to its lack of knowledge or notice that it should, by the exercie of reasonable care and precaution have discovered the condition and danger incident thereto of that pole. Your attention is particularly directed to that inquiry as you retire to your jury room.'

The jury returned a verdict for the plaintiff in the sum of $7,483.63. Thereafter a motion for judgment notwithstanding the verdict was made, and was denied. Defendant then moved for a new trial, alleging, among other grounds therefor, that the verdict was excessive. The trial court sustained such claim, stating in his opinion that a new trial would be granted unless the plaintiff consented to remit all over and above the sum of $5,000. This was done, and judgment was entered accordingly. Defendant has appealed, asserting that under the proofs introduced on behalf of plaintiff it was entitled to a directed verdict, that the motion for judgment non obstante veredicto should have been granted, and that, if the matter of defendant's negligence was a proper question for determination by the jury, errors in the admission of testimony require the granting of a new trial

The provisions of the statutes under which plaintiff claims the right to maintain the present action are as follows:

'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, cross walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.' C.L.1948, § 242.1, Stat.Ann. § 9.591.

'It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel, * * *.' C.L.1948, § 242.3, Stat.Ann. § 9.593.

'No township, village or city in this state shall be liable in damages, or otherwise, to any person or persons for bodily injury, or for injury to any property sustained upon any of the public highways, streets, bridges, sidewalks, crosswalks or culverts, in such townships, villages or cities, except under and according to the provisions of this act, and the common law liability of townships, villages and cities of this state, for or on account of bodily injuries sustained by any person by reason of neglect to keep in repair public highways, streets, bridges, sidewalks, crosswalks or culverts, is hereby abrogated.' C.L.1948, § 242.5, Stat.Ann. § 9.595.

'If said public highway, street, bridge, sidewalk, crosswalk or culvert is in a condition which is not reasonably safe and fit for travel either by persons, animals or vehicles, because of defects in the original construction, then it shall not be necessary to show that any notice thereof was brought to the attention of such township, village or city, before a recovery can be had. If the defect is caused by said highway, street, bridge, sidewalk, crosswalk or culvert becoming out of repair, it shall be conclusively presumed that the township, village or city had notice thereof and a reasonable time in which to repair the same, provided said defect has existed for a period of 30 days or longer.' C.L.1948, § 242.6, Stat.Ann. § 9.596.

The trial judge came to the conclusion, based on the evidence in the case, that the issues of negligence, notice or knowledge, and proximate cause, were properly for the jury to determine. In reaching such conclusion reliance was placed on the decision of this court in Rufner v. City of Traverse City, 296 Mich. 204, 295 N.W. 620. On behalf of plaintiff it is contended that the rulings of the trial court of which defendant complains were correct, and that there was no error in the receiving of testimony sufficiently prejudicial to require the granting of a new trial. Before discussing the nature and sufficiency of plaintiff's proofs it becomes necessary to determine whether any material part of such proofs should have been rejected.

In support of plaintiff's claim that the post was not properly safeguarded or maintained because of the failure to provide a proper ground therefor she offered the testimony of a witness who had studied electricity in Ohio State University, and who had had many years of practical experience, largely in the employ of Consumers Power company. He gave testimony indicating that it is standard practice to use a ground wire with a metal post, even though the post rest on a cement foundation. Objection was made on the ground that the witness indicated by the form of his answers that he 'though' such to be the practice. Following a motion to strike based on the ground indicated, the witness stated that such was the practice with his employer. Further objection was made that such answer was incompetent, whereupon the witness testified:

'So far as I know every company follows that procedure.

'I know of a great many companies--the Detroit Edison, the Chicago Edison, and some of the larger ones. The Toledo...