Davis v. City of Jackson
| Decision Date | 10 June 1886 |
| Citation | 28 N.W. 526,61 Mich. 530 |
| Court | Michigan Supreme Court |
| Parties | DAVIS v. MAYOR, ETC., OF THE CITY OF JACKSON. |
Error to Jackson.
Gibson & Parkinson, for plaintiff.
Erastus Peck, for defendant and appellant.
This action is brought to recover damages received by plaintiff caused by being thrown from his carriage through the alleged negligence of defendant in not keeping what is known as "Mason Street," in the city of Jackson, in repair, and reasonably safe and fit for travel. Mason street, in the city of Jackson, runs east and west passing on the north side of a park called "Greenwood Park." On the west side of the park is a narrow street or way used for public travel, which terminates in Mason street at the north-west corner of the park. The common council of the city of Jackson made an appropriation for the repair of Mason street, between Blackstone and Jackson streets, which includes the place in the street where the accident to plaintiff occurred. The repairs were made, and consisted of graveling the center of the street a space of about 18 feet for public travel, the cleansing of the gutters, and putting a box drain in the gutter at the intersection of the street, on the west side of the park with Mason street, for the purpose of permitting the water which might accumulate in the south gutter of Mason street to pass off. These repairs were made under the direction of the street commissioner, and the expense thereof was audited by the common council, and paid from the appropriation therefor. This box drain was 37 feet and 4 inches in length, 12 inches in width, and 10 inches in depth, and was so placed that the west end was on a line with the west line of the narrow street referred to above, and extended eastward of the east line of said street a distance of 15 feet. It was covered with earth, so as to be level with the street. Close to each end of the box drain, and on the side of the traveled part of Mason street, a stone was placed for the purpose of keeping people from running off the ends of the drain into the gutter, and to protect the traveling public, and to keep them from running off the end, and were placed there by the direction of the street commissioner as a part of the repairs then made upon Mason street. The cost of placing the stones were embraced in the expense of making the repairs. The stone placed at the east end of the drain was oblong in form, being about 22 inches in greatest length, and about 14 inches in depth. It was larger at one end than the other and the heaviest end was partially imbedded in the ground, and the other projected about six inches above the level of the top of the drain. The roadway between the stones was in good condition, and mere, and fit for travel, as was also Mason street between the stones and the north gutter. Between 7 and 8 o'clock in the evening of November 19, 1882, the plaintiff, riding in a buggy with the top half down, drove northward along the narrow way upon a trot, and turned east into Mason street, where his carriage wheels on the right hand side collided with the stone mentioned, and he was thrown out and injured. It is for this injury that he claims damages, and a right to recover, for the reason that the defendant "wrongfully, knowingly, and negligently suffered said Mason street, near its intersection with said first-mentioned street, to be and remain incumbered with a certain large stone, within or very near to the usually traveled portion of Mason street, and in dangerous proximity thereto, of which the defendant had due notice."
This action is based upon sections 1442 and 1443 of Howell's Statutes, which provide that any person sustaining bodily injury upon any of the public highways or streets in this state, or if any horse or vehicle shall receive any injury or damage by reason of neglect to keep such public highway or street, etc., in repair, and in a condition reasonably safe and fit for travel, by the city whose corporate authority extends over such public street, etc., and whose duty it is to keep the same in good repair, shall be liable to, and shall pay to, the person injured just damages. There is a proviso contained in section 1443 which reads: "Provided that, in all actions brought under this act, it must be shown that such township, village, city, or corporation has had reasonable time and opportunity, after such highway, street, cross-walk, or culvert became unsafe, or unfit for travel, to put the same in proper condition for use, and has not used reasonable diligence therein." Section 1445 enacts: "It is hereby made the duty of the townships, villages, cities, or corporations to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel." Outside of the duty prescribed by this section, there is neither duty nor liability upon a city for negligence in keeping its streets in repair, or safe and convenient for public travel. The charter of the city of Jackson, in force at the time of the accident, placed the control and jurisdiction of its streets in the common council, and gave the council power to cause the streets to be graded and graveled, and otherwise improved and repaired, and for that purpose to divide the city into street districts, and to provide means to make such repairs and improvements.
The board of public works of the city of Jackson was authorized by an amendment of the charter, in 1871, and as organized under that act has since been continued in force. They were given control of the water-works, sewers, the diking of Grand river, and such other matters relating to repairs and improvement of streets as the common council should, from time to time, by ordinance or otherwise, direct. They were required to keep a record of their proceedings, which should at all reasonable times be open to the inspection of the members of the common council, and all other persons interested. By an amendment of the charter, passed in 1877, a majority of the board was required to constitute a quorum for the transaction of business, but a majority of all the members thereof was necessary to decide questions before the board; and it required that the record of the proceedings of the board should show the vote of each appropriating money, allowing claims, making or approving contracts, or incurring expenditure, in any manner, and whether he voted for or against such question. By the act of 1877 it was also provided that the board of public works should cause to be performed all such labor, repairs, and improvements upon the highways, streets, etc., as the common council shall direct. By a further amendment in 1879, the board was given power to nominate a street commissioner and city engineer, subject to the approval of the common council; and the board of public works was required to make a report to the common council in writing, on oath of the person having charge of the work that has been performed, giving an exact statement of all labor performed by them, or under their supervision, and the charges therefor, and the street or place where such material was used or labor performed, showing the items and purpose of all expenses incurred since their last preceding report; and it was enacted "that no payment for labor or services performed, or for expenses incurred, by them shall be made until reported on oath, as aforesaid."
With these provisions of the charter before us, we proceed to examine the claim made by the defendant "that the stone against which the plaintiff drove was part of the construction of the box drain, placed at its end to protect the traveling public, and to prevent the people from driving off the end into the ditch, as a railing would be placed at the end of a bridge to prevent them from driving off into the river; that this mode of construction was the city's plan of making the improvement; and that the city cannot be held liable by reason of any accident or injury occasioned by a defect of such plan."
The evidence introduced in the...
To continue reading
Request your trial