Dittmar v. City of Flint, 22

• Decision Date: 01 March 1965
• Docket Number: No. 22,22
• Citation: 133 N.W.2d 197,374 Mich. 688
• Parties: Gladys R. DITTMAR, Plaintiff and Appellant, v. CITY OF FLINT, a municipal corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 197

133 N.W.2d 197

374 Mich. 688

Gladys R. DITTMAR, Plaintiff and Appellant, v. CITY OF FLINT, a municipal corporation, Defendant and Appellee.

No. 22.

Supreme Court of Michigan.

March 1, 1965.

Howard C. Fisher, Flint, for plaintiff and appellant.

Edward P. Joseph, Richard R. Lovinger, Flint, for defendant and appellee.

Before the Entire Bench.

BLACK, Justice.

This is what is known as a sidewalk injury case. Plaintiff alleged that one of the public sidewalks on Saginaw street, in Flint, was defective and out of repair 'in that, at a point near to and abutting number 518 North Saginaw street, there was a large upraising of one slab of concrete from the next, the southernmost slab being three inches upraised from that adjoining to the north across its entire width running east and west.'

Plaintiff's fall and resulting injury occurred April 19, 1963. The defendant city moved for summary judgment upon showing of conceded fact that the sidewalk of Saginaw street at the point of injury was 'within the right of way of a Michigan State Trunkline Highway' (M-54), and upon allegation that plaintiff's right of action as set forth in her complaint was barred by the 1959 amendment of section one of the trunk line highway act (C.L.S.1961, § 250.61).

In his opinion the trial judge suggested that the 1959 amendment had been stimulated by this Court's decision to affirm, upon equally divided vote, former Circuit Judge Elliott's judgment in the case of Jourdin v. City of Flint, 355 Mich. 513, 94 N.W.2d 900. In Jourdin three members of the Court concurred with Justice Kelly's summary, quoted from Jourdin (pp. 534, 535, 94 N.W.2d p. 911):

'Consequently, I cite with approval and in complete agreement the following from the opinion of Hon. Philip Elliott, circuit judge of the county of Genesee:

'Under the statutes above quoted there is still a duty on the part of the city to keep in reasonable repair 'all public highways, streets (etc.) which are within their jurisdiction and under their care and control, and which are open to public travel.' C.L.1948, § 242.3; Stat.Ann.1958 Rev. § 9.593. The court does not believe that any of the statutes cited by defendants removes this duty, nor can the city avoid it by entering into a contract with the State highway commissioner. If the necessary elements of negligence by employees of the city are proven, one who is injured thereby on a trunk line highway can recover even if the city has a contract with the State highway commissioner for full reimbursement of the cost. Such a one who is so injured comes within the terms of liability set forth in C.L.S1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591). The motion for judgment notwithstanding the verdict is denied."

Jourdin was handed down February 20, 1959. The amendment was effected by P.A. 1959, No. 185, approved July 22, 1959. It reads:

'Sec. 1. On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the countes, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith as imposed by section 21 of chapter 4 and chapter 22 of Act No. 283 of the Public Acts...