City of North Muskegon v. Clark

• Decision Date: 05 June 1894
• Docket Number: 176.
• Parties: CITY OF NORTH MUSKEGON v. CLARK.
• Court: U.S. Court of Appeals — Sixth Circuit

62 F. 694

CITY OF NORTH MUSKEGON v. CLARK.

No. 176.

United States Court of Appeals, Sixth Circuit.

June 5, 1894

This was an action by Bridget Clark against the city of North Muskegon for personal injuries. The jury found for plaintiff and judgment for plaintiff was entered on the verdict. Defendant brought error.

This writ of error brought into review the judgment of the circuit court for the western district of Michigan. Bridget Clark the plaintiff below, a citizen of the state of New York filed her declaration setting forth a plea of trespass on the case against the city of North Muskegon, a municipal corporation existing under the laws of Michigan, which, since the acts complained of, had ceased to be a village, and had become a city. The declaration averred that the corporate authority of the village extended over divers public ways, highways, and streets, and especially over a certain public highway or street known as Maple street, and over the bridges, sidewalks, crosswalks, and culverts on the same; that the said Maple street, for more than 10 years before the committing of the grievance in the declaration thereinafter set forth, had been, and was at the time of the filing of the declaration, a public highway and street of the village, and open to public travel; that it was the duty of the village, by reason of Act No. 264 of the Public Acts of the State of Michigan, passed at the regular session of 1887, and approved June 27, 1887, to keep and maintain the sidewalk upon said street in reasonable repair, so that it should be reasonably safe for public travel; that, in violation of this duty, the village, at a point on the street in front of the premises of one Misner, carelessly and negligently permitted the said walk to become greatly out of repair, and the boards or planks to become so loose that it was in a dangerous condition for persons to pass and repass upon it, of all of which the village had had notice for a year preceding the 8th day of October, 1890, upon which day the plaintiff, while proceeding along the sidewalk of said Maple street with due care and caution, was tripped by the loose planks or boards in said sidewalk, was thrown to the ground with force and violence, and the bones of her left ankle and leg were broken. For this injury she asked damages.

The defendant placed the general issue, and in its bill of particulars gave notice that it would give in evidence the fact that the plaintiff had sued the defendant, under its then corporate name of the village of Muskegon, in the circuit court of the county of Muskegon, in the state of Michigan, in a certain plea of trespass on the case for committing the same supposed wrongs and injuries (if any such there were) in the plaintiff's declaration mentioned; that thereafter the defendant demurred to the declaration, and, the issue coming on to be tried, the court adjudged that the matters contained in the declaration were not sufficient in law for the plaintiff to have the action against the defendant, and sustained the demurrer; that the court ordered that, upon payment by the plaintiff to defendant of $10 as attorney's fee, within 20 days thereafter, the plaintiff might have leave to file an amended declaration, to which the defendant should plead, within the rules of practice of the court, but otherwise it was considered by the court that the plaintiff should take nothing by her declaration, and that the defendant should recover, against the plaintiff, its costs, and have execution therefor; that the plaintiff did not file an amended declaration, and did not pay the attorney's fee required, and that the judgment of the circuit court for the county of Muskegon against the plaintiff, and in favor of the defendant, remained in full force and effect, unreversed.

No. 264 of the Public Acts of Michigan for 1887 imposes a liability upon townships, villages, cities, and other municipal corporations for bodily injury sustained by any person by reason of the neglect of such municipal corporation to keep in repair its public highways, streets, bridges, sidewalks, crosswalks, and culverts, when the same are open to public travel, and the municipal corporation has had reasonable time and opportunity, after knowledge that such highway, street, bridge, sidewalk, crosswalk, or culvert is unsafe or unfit for travel, and has not used reasonable diligence thereafter in putting the same in repair. The fourth section limits the application of the law to highways in certain corporations which have been in use 10 years or more.

The declaration in the circuit court of the county of Muskegon set out exactly the same cause of action as the declaration herein, except that it did not allege, what the declaration herein does allege, that Maple street was a street which had been in use for 10 years, and was open to public travel. It appeared from the bill of exceptions that, after the demurrer was sustained, and judgment given for the defendant, a writ of error was sued out, and the case carried for review to the supreme court of the state; that there the judgment of the state circuit court was affirmed, and leave was given to the plaintiff to file an amended declaration, but the plaintiff never did so; that subsequently, and after suit was brought in the court below, a stipulation to discontinue the suit, signed by the attorneys, was filed in the state court.

The supreme court of Michigan, in its decision in this case, reported in 88 Mich. 308, 50 N.W. 254, affirmed the judgment of the state circuit court only because the declaration did not aver either that the sidewalk upon Maple street was open to public travel at the time of the accident, or that the street had been in use as a highway for 10 years. In the case of Fuller v. City of Jackson, 92 Mich. 197, 52 N.W. 1075, the supreme court of the state decided that the proviso in the fourth section of the statute of 1887, with respect to 10 years' use of the street, applied only to highways in townships, and not to highways in villages and cities, and to this extent the decision in Clark v. Village of North Muskegon, 88 Mich. 308, 50 N.W. 254, was overruled.

The circuit court held that the judgment in the state court was no bar to a recovery in this action, and upon a trial a judgment and verdict for plaintiff was rendered in the sum of $2,500.

The only assignments of error relate to the ruling of the court with reference to the effect of the action in the state court and the judgment therein.

Boyd & Sullivan, for plaintiff in error.

R. J. Macdonald, for defendant in error.

Before TAFT and LURTON, Circuit Judges.

TAFT Circuit Judge, after stating the case as above, .

By the common law of Michigan, municipal corporations are not liable for injuries to a traveler caused by the defective condition of the streets within their borders. Detroit v Osborne, 135 U.S. 492, 10 Sup.Ct. 1012; Detroit v. Blackeby, 21 Mich. 84; Detroit v. Putnam, 45 Mich. 263, 7 N.W. 815; Church v. City of Detroit, 64 Mich. 571, 31 N.W. 447. The right of the plaintiff below to recover for her injuries against the village or city rested wholly upon the act of 1887, and a good declaration ought to have set out the conditions precedent to a recovery mentioned in the statute. The declaration in the state court was bad for not averring that the street or sidewalk upon which the accident occurred was open for public travel. The declaration in the court below contained such an averment. ...