Cloutier v. City of Owosso, 41

Decision Date03 October 1955
Docket NumberNo. 41,41
Citation72 N.W.2d 46,62 A.L.R.2d 389,343 Mich. 238
Parties, 62 A.L.R.2d 389 Margaret CLOUTIER, Plaintiff and Appellee, v. CITY OF OWOSSO, Defendant and Appellant.
CourtMichigan Supreme Court

James M. Teahen, Jr., Owosso, for defendant and appellant.

V. O. Braun, Owosso, for plaintiff and appellee.

Before the Entire Bench.

CARR, Chief Justice.

Plaintiff sustained injuries as a result of falling on a defective sidewalk in defendant city, and sued in circuit court to recover damages. The accident happened on November 26, 1952, at about 12:15 p. m. Plaintiff, a woman at the time 67 years of age, left her place of employment at a local factory and walked along the east side of South Washington street in Owosso toward a restaurant at which she intended to obtain a lunch. In attempting to proceed over the defective place in the sidewalk she stepped on a slab or piece of cement, not knowing that it was loose, and fell, sustaining a fractured wrist and other injuries of a lesser nature. Notice of the accident and principal injury was thereafter given to the city on or about December 22, 1952.

In her declaration plaintiff alleged that defendant brached its statutory duty to maintain the sidewalk in question in proper condition for public travel, and that she was at the time of the accident and injury exercising due care for her own safety. On behalf of defendant answer was filed denying liability. At the conclusion of plaintiff's proofs on the trial defendant moved for a directed verdict on the ground that no proof had been offered with reference to the service on the city of a proper notice of the accident and injury. Thereupon the court allowed plaintiff to re-open her proofs for the purpose of introducing the notice that was actually served. Defendant objected to such action, and further claimed in support of its motion for directed verdict that the notice was insufficient in substance to fairly apprize defendant as to the spot where the accident happened and the nature of the defect causing plaintiff to fall. The motion was taken under advisement by the court, testimony was offered on behalf of defendant, and at the conclusion of the proofs the motion was renewed, reliance being placed on the reason first assigned and on the further ground that plaintiff was guilty of contributory negligence as a matter of law. The trial judge indicated in the colloquy that followed between himself and counsel that he did not think the motion well-founded. The case was submitted to the jury and a verdict in the sum of $2,000 in plaintiff's favor was returned. Defendant has appealed.

The principal question at issue has reference to the alleged contributory negligence on plaintiff's part. Appellant insists that she was familiar with the condition of the defective sidewalk, and that she was guilty of negligence in attempting to walk over it. In considering whether a verdict should have been directed on such ground we have in mind the general rule that the testimony must be construed as strongly as reasonably possible in plaintiff's favor. Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728; Spiers v. Martin, 336 Mich. 613, 58 N.W.2d 821; Douglas v. Holcomb, 340 Mich. 43, 64 N.W.2d 656.

As a witness in her own behalf plaintiff testified with reference to the time and place of the accident and injury. The following excerpt from her testimony, reduced in the record to narrative form, indicates her claim as to the cause of her fall:

'My mind was on looking where I was going and getting back to work.

I was watching for my own safety. When I got in front of 605 South Washington Street I fell down. The sidewalk was all cracked and broken and I stepped on a piece of loose cement or something, and over I went. I fell on my right side. I couldn't tell before I stepped on the cement whether or not it was loose. If I could, I wouldn't have stepped on it. If I knew it I wouldn't have stepped on it. I didn't want to fall. When I stepped on the cement it threw me and I fell on the walk and fell tilting on my left side.'

She further stated on cross-examination that she had walked over the sidewalk area in question many times, that she was a 'spry walker', and that her eyesight was good. The testimony further indicates that many people other than plaintiff passed over the section of sidewalk in question.

The fact that plaintiff knew that the section of sidewalk where she fell was not in good condition does not necessarily establish that she was guilty of contributory negligence as a matter of law in attempting to walk over it. In Vergin v. City of Saginaw, 125 Mich. 499, 84 N.W. 1075, 1076, in holding that the question as to plaintiff's contributory negligence was for the jury to determine, the Court quoted with approval from Lowell v. Township of Watertown, 58 Mich. 568, 25 N.W. 517, as follows:

"A person is not necessarily precluded from recovering for an injury caused by a defect in a highway simply for the reason that he is aware of such defect; but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all the facts and circumstances, he was guilty of carelessness or negligence without which he would nto have been injured."

Likewise, in Belyea v. City of Port Huron, 136 Mich. 504, 507, 99 N.W. 740, 741, this Court, in holding that the issue of contributory negligence was properly submitted to the jury, said, in part:

'It has been repeatedly held that a man is not precluded from traveling over a highway or sidewalk simply because he knows there is a defect in it. He is bound, however, to exercise such care and diligence as a prudent man would exercise in view of the danger. We think the following cases justify the charge of the learned judge: Lowell v. Township of Watertown, 58 Mich. 568, 25 N.W. 517; Harris v. Township of Clinton, 64 Mich. 447, 31 N.W. 425, 8 Am.St.Rep. 842; Dundas v. City of Lansing, 75 Mich. 499, 42 N.W. 1011, 5L.R.A. 143, 13 Am.St.Rep. 457; Brezee v. Powers, 80 Mich. 172, 45 N.W. 130; Ashman v. [Flint & P. M.] Railroad Co., 90 Mich. 567, 51 N.W. 645; Corcoran v. City of Detroit, 95 Mich. 84, 54 N.W. 692; Dittrich v. City of Detroit, 98 Mich. 245, 57 N.W. 125; Germaine v. City of Muskegon, 105 Mich. 213, 63 N.W. 78; Whoram v. Township of Argentine, 112 Mich. 20, 70 N.W. 341; Schwingschlegl v. City of Monroe, 113 Mich. 683, 72 N.W. 7.'

In accord with the foregoing decisions, it was held in Oesterreich v. City of Detroit, 137 Mich. 415, 100 N.W. 593, that:

'It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it.' (Syllabus 1.)

In Wadkins v. City of Albion, 201 Mich. 130, 133, 166 N.W. 982, 983, in affirming a judgment for the plaintiff, it was said:

'The fact that the plaintiff had knowledge of the defect did not necessarily establish her negligence, but was a fact to be considered by the jury along with the other facts as to whether she was negligent or not. Whoram v. Township of Argentine, 112 Mich. 20, 70 N.W. 341; Barnes v. West Bay City, 138 Mich. 93, 101 N.W. 1131. There are many other cases to the same effect.'

The proofs in the instant case bring the question of contributory negligence on plaintiff's part within the rule recognized and applied in the foregoing decisions. While plaintiff knew that the sidewalk was not in good condition for travel, she was also aware that she had passed over it previously in safety and that others had done likewise. According to her testimony she did not know when she stepped on the slab or piece of cement that it was loose. The trial judge was correct in submitting the issue to the jury under a charge that fully protected the rights of the defendant.

Appellant cites and relies on Vincent v. City of Detroit, 209 Mich. 542, 177 N.W. 239. There plaintiff undertook to cross a street where repairs to a street car track were in progrees, the pavement being torn up to permit the carrying on of the work. According to the plaintiff's testimony she stepped down on a tie and undertook to step over the rail, the top of which was approximately six inches above the tie. She either caught her foot on the rail or tripped over it. Obviously there was no misapprehension on her part as to the exact nature of the situation. Under such circumstances it was held that she was not entitled to recover. Reliance is also placed by appellant on Johnson v. City of Pontiac, 276 Mich. 103, 267 N.W. 795. In describing how the accident happened plaintiff in that case admitted that she knew that the sidewalk was in such condition that it was unsafe to walk over it. However she undertook to do so, with the result that her heel struck a piece of concrete that projected approximately three inches above the level of the sidewalk. It was held that she was guilty of contributory negligence as a matter of law. Because of the factual situations involved, the decisions relied on are not controlling in the case at bar.

Appellant further claims that the trial court was in error in allowing plaintiff to re-open her proofs for the purpose of introducing the notice served on the city following the accident. On the record before us it may not be said that such action constituted an abuse of discretion. Apparently counsel for plaintiff was under the mistaken belief that there was no dispute with reference to the service of the notice or its sufficiency, and that such service had in effect been admitted. There was no error in permitting the proofs to be reopened for the purpose indicated.

It is also urged that the notice served on the city was insufficient to constitute a compliance with the requirements of the statute. C.L.1948, § 242.8, Stat.Ann. § 9.598, reads as follows:

'In the event damages are sustained by any person, either by bodily injuries or to his property, because of the defective condition of any highway, street, bridge, sidewalk, crosswalk or culvert in any city or incorporated village of this state...

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3 cases
  • Ferguson v. Ben M. Hogan Company
    • United States
    • U.S. District Court — Western District of Arkansas
    • December 23, 1969
    ...are required to exercise that degree of care which a prudent man would exercise in view of the danger. Cloutier v. City of Owosso (1955), 343 Mich. 238, 72 N.W.2d 46, 62 A.L.R.2d 389. Plaintiffs were aware that construction was incomplete or in progress along Central Avenue. The accident oc......
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    • Court of Appeal of Michigan — District of US
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    ...on mistakes of counsel where they can be remedied without hardship to the other parties concerned. Cloutier v. City of Owosso (1955), 343 Mich. 238, 246, 72 N.W.2d 46, 62 A.L.R.2d 389. Dismissal of the plaintiffs' suit here forever bars his right to recover or to bring a new suit against th......
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    • Court of Appeal of Michigan — District of US
    • April 26, 1966
    ...plaintiff and accept those proven as true. See Ingram v. Henry (1964), 373 Mich. 453, 129 N.W.2d 879; Cloutier v. City of Owosso (1955), 343 Mich. 238, 72 N.W.2d 46, 62 A.L.R.2d 389. The collision with defendant Scupholm's car occurred at the intersection of John R and Dallas, Madison Heigh......

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