Dundas v. City of Lansing
| Decision Date | 28 June 1889 |
| Citation | 75 Mich. 499,42 N.W. 1011 |
| Court | Michigan Supreme Court |
| Parties | DUNDAS v. CITY OF LANSING. |
Error to circuit court, Ingham county; PECK, Judge.
This action was brought to recover damages for a personal injury alleged to have been caused by the neglect of defendant in not keeping a cross-walk in repair. An objection is raised by the defendant which goes to the plaintiff's right of action, although not affecting her cause of action, which, if disposed of in favor of the defendant, will suspend further proceedings in this suit, and render it unnecessary to pass upon other questions raised by the record. The charter of the city of Lansing provides that Local Acts 1875, p. 168. The amendments of 1883 do not affect the point under consideration. See Local Acts 1883, p. 734. The record shows that on the 16th day of January, 1888, the plaintiff presented her claim to the common council in detail, in which she explained when, where, and how the accident happened, her consequent injury, her expenses incurred for medical attendance medicine, and loss of time resulting from such injury. She stated that she had suffered greatly in body and mind by reason of her injuries; that she was unable to state any amount which would be adequate for the pain and suffering she had endured and must continue to endure, nor her loss in case disability should prove to be permanent; but if her claim should be recognized by the city in the spirit of fairness, and an adjustment thereof speedily made, she would accept the sum of $2,000 in addition to the other items, which amounted to $81. She asked that her claim be investigated by the council, and a reasonable and just allowance made her as compensation. Her claim was verified by her affidavit, in which she stated that no set-off exists to her claim, nor has any payment been made on account thereof. The claim was referred to the city attorney, who reported it back, with the recommendation that the same be laid upon the table, which report and recommendation was adopted by the unanimous vote of the council. No investigation was made by the council into the facts and circumstances or merits of the claim, and on April 23, 1888, this suit was commenced to recover her damages for the same claim so presented to the council. We think the plaintiff complied substantially with the requirements of the charter. Ample time and opportunity were afforded the council to investigate the merits of the claim presented, had they chosen to do so. The plaintiff is not barred from a recovery by the charter provisions mentioned.
The plaintiff claims that on Thanksgiving day, 1887, as she was traveling from her place of employment to her home, at about 7 o'clock in the evening, accompanied by two of her children, she stepped in a hole in the cross-walk as she was crossing Butler street, and partly fell, and received a severe strain in her back, which occasioned an injury to her spine, and from the effects of such injury she has suffered great bodily pain, and become disabled from doing work; that she was in the exercise of ordinary care; and that the city was negligent in not keeping the cross-walk in repair after it had notice or knowledge of its unsafe condition. The hole was caused by a broken plank in the cross-walk directly over the gutter. The plank was from six to eight inches wide, and had broken about eighteen inches from the west stringer, and that length had been torn out and removed; thus making the hole about eight by eighteen inches, and about eighteen inches deep to the bottom of the gutter. On the fourth day after the accident plaintiff sent a request to her employer, a Mr. Wilson, to send her some liniment. Instead of doing so, he sent her a physician, Dr. Ostrander, who testified to making an examination of the injuries of plaintiff three or four days after Thanksgiving day. He testified fully as to her condition and to her complaints as to her ailments, and against the objections of the counsel for defendant he was permitted further to testify as follows: The court erred in permitting the declarations of the plaintiff, as to the manner and circumstances of her injury, to be given in evidence. There is no pretense that they were a part of the res gest�. They were not necessary to enable the physician to correctly diagnose her case. He had testified fully to that already The only purpose which such testimony could answer would be to establish the fact, which was disputed, that she had received the injury complained of on account of a defect in the cross-walk. This is made more manifest by the question by which such testimony was followed, namely: Objection was timely made to this question, and was overruled. The witness answered: "Well, it could have been caused by the accident that occurred." That narrations of past occurrences as to the manner in which a party has been injured cannot be given in evidence by an attending physician, any more than by a non-professional man, is settled in this court by the case of Merkle v. Bennington Tp., 58 Mich. 160, 24 N.W. 776. The testimony should have been excluded. The questions put to Dr. Shank, calling for a narration from the plaintiff of the way the injury occurred, should have been excluded for the same reason.
The statute creating the liability of municipal corporations, and giving a right of action for negligence to a party injured contains this proviso: "That in all actions brought under this act it must be shown that such township, village, or city has had reasonable time and opportunity, after knowledge by or notice to such township, village, or city, that such highways, streets, bridges, sidewalks, cross-walk, or culvert have become unsafe, or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein after such knowledge or notice." Pub. Acts 1887, No. 264, � 2. The plaintiff, in order to prove notice to the city, introduced testimony to show that actual notice was given to the alderman of the ward in which the cross-walk in question was located of the defective condition of sidewalks in the vicinity of the defective cross-walk which occasioned the injury as claimed. This notice was given in the latter part of April or the fore part of May, 1887, and the accident occurred in November. There was testimony introduced tending to show that the particular defect complained of had existed six months prior to the accident to plaintiff. The individual knowledge of officers or agents of municipal corporations, who in such capacity have powers or duties conferred upon them will reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents is notice to the corporation, and the corporation is bound or affected by such knowledge or notice. Where the liability of the municipality is created by statute, such liability must depend upon a true interpretation of the statute under which it is created. The charter of the city of Lansing provides that "the common council shall be commissioners of highways for said city, and shall have the care and supervision of the highways, sidewalks, streets, bridges, *** therein, not belonging to or occupied by the state; and it shall be their duty to give directions for the repairing, preserving, improving, cleansing, and securing of such highways, *** and to cause the same to be repaired, cleansed, improved, and secured from time to time, as may be necessary; *** to divide said city from time to time into so many highway districts as they shall deem expedient, by an ordinance or resolution entered in their minutes; to appoint and assign to each of said districts so many inspectors of streets as they shall from time to time deem proper." Local Acts 1875, tit. 12, � 14, act No. 282. "It shall be the duty of the street inspectors of the several...
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