Carver v. Detroit & Saline Plank-Road Co.

• Decision Date: 17 June 1886
• Parties: CARVER v. DETROIT & SALINE PLANK-ROAD CO.
• Court: Michigan Supreme Court

61 Mich. 584
28 N.W. 721

CARVER
v.
DETROIT & SALINE PLANK-ROAD CO.

Supreme Court of Michigan.

June 17, 1886.

Error to Wayne.

[28 N.W. 721]

Parker & Burton, for plaintiff and appellant.

C.A. Kent, for defendant.

CHAMPLIN, J.

In this case a motion for a rehearing was made and granted. The opinion of the court rendered upon the first hearing was filed October 28, 1885, 25 N.W.Rep. 183, in which it was stated that it was not necessary to consider the extent of the duty of the defendant, either at common law or under its charter, in this class of cases; that it is enough that, under the general statutes of this state passed in 1877, it was made the duty of the defendant to erect the barrier against the danger which overtook the plaintiff's husband at this place therein provided for; citing Laws 1877, pp. 135, 136, §§ 5, 7. This statute was relied upon by the plaintiff upon the argument of the cause as creating the duty of defendant to fence or erect a barrier at the point in question, and the defendant's counsel objected to the plaintiff's right of recovery under that act, for four reasons stated by him in his brief, and argued upon the hearing, treating the law as in existence, but contending that it was inapplicable. The fact that the act in question was included in act No. 242 of the Session Laws of 1881, repealing a large number of statutes relating

[28 N.W. 722]

to highways and bridges, escaped at the time the attention of the counsel for the parties and the court also. After the opinion was filed, counsel for defendant, on a motion for a reheating, called our attention to the repeal of the act of 1877; and consequently we ordered a rehearing of the case. It is urged by counsel for plaintiff that the repeal of the act of 1877 does not relieve the defendant from the performance of a statutory duty, inasmuch as other statutes passed subsequently to that of 1877, and which are still in force, impose, in effect, the same duty upon defendant with respect to keeping the highway under its control in good repair, and reasonably safe and fit for travel.

The act of 1881 by which the several statutes were repealed, after enumerating some 19 different statutes, states, “which said several statutes and acts, and acts amendatory thereof, being either obsolete or superseded by Other legislation, are hereby repealed.” Upon the same day this act was approved another act to revise and consolidate the highway laws was approved, the fifth section of chapter 5 of which provided that “it should be the duty of the commissioner of highways of each township to see that all plank or gravel road companies owning or controlling any kind of toll-road maintain their roads in as good and safe condition as he is required to keep the public highways of his township.” Section 1 of the same chapter makes it the duty of the commissioner, when any public highway passes along the bank of any lake, river, or other water-course, by the falling or washing away of the bank, or from any other cause, shall become reduced to a width of less than 50 feet, to proceed, within 10 days after knowledge or notice of the defect, and examine the same; and, if he finds it to be less than 50 feet wide, to forthwith lay out, open, and widen and work such highway in and upon the adjacent land to the width of 50 feet. The next section provides as follows: “When any such highway is less than fifty feet wide, and more than thirty-five feet wide, the commissioner may in his discretion, instead of widening the same, erect near the edge of the bank, and thereafter maintain in good order, a substantial railing or fence, which shall be at least three feet high, and sufficiently strong to prevent persons, carriages, and animals from falling over such bank.”

These provisions of the law undoubtedly apply to the defendant corporation, and create a duty which is incumbent upon the defendant to observe in cases falling within the...