Finn v. City of Adrian
| Decision Date | 18 November 1892 |
| Citation | 93 Mich. 504,53 N.W. 614 |
| Court | Michigan Supreme Court |
| Parties | FINN v. CITY OF ADRIAN. |
Error to circuit court, Lenawee county; VICTOR H. LANE, Judge.
Action for personal injuries by Jane E. Finn against the city of Adrian. Plaintiff had judgment for $3,500, and defendant brings error. Affirmed.
Walter S. Westerman, City Atty., for appellant.
Watts, Bean & Smith, for appellee.
Plaintiff recovered damages for injuries received in falling through a defective cross walk of the defendant city. The duty alleged in the declaration is "to use reasonable care that said street and said cross walk were kept and maintained in a suitable condition for travel by the public; and, in case of paving or repairing said street, * * * to take all proper precautions to warn the public thereof by barriers and lights." The violation of this duty is alleged to consist in the removal of a portion of the plank in the cross walk, leaving two holes about four feet in length and nine inches in width, without closing the street or cross walk to the use of the public, and without placing any guard, watchman, barriers, or light at or near said cross walk to warn persons who might have occasion to use the same. The accident occurred on the evening of June 25, 1891. Plaintiff and her husband walked from their home down town to do some shopping. The cross walk in question was on McVicar street where it crosses East Maumee street. Plaintiff lived on Addison street,-the next street east of McVicar street, and north of East Maumee street. In going down town she and her husband passed on the north side of East Maumee street, where the cross walk was in good condition. They went down and returned in the evening and in going passed very near the defective cross walk. As they approached McVicar street on their return, plaintiff reminded her husband that they had forgotten to get some meat. They then turned south upon the west crossing to go to a meat market. Her husband crossed over in safety, but she fell in one of these holes, and was very seriously injured. The hole was about 18 inches deep. The improvement which the city was making consisted of excavating, filling, and paving East Maumee street. The cross walk was in good condition from the south side of the north sidewalk of Maumee street, where the plaintiff turned to cross, for about eight feet. Then came these two holes, which were caused by the removal of some planks from the walk. Plaintiff's evidence tended strongly to show that there was no necessity for removing these planks, which was done about eight days before the accident. The three following questions were given to the jury: (1) Did the plaintiff cross Maumee street from the south side to the north side on the east side of McVicar street? (2) Was the plaintiff free from negligence on her part? (3) Did the plaintiff know these improvements were going on? To the first of these questions the jury answered, "No;" to the other two "Yes."
It is conceded that no light was placed upon the crossing, and no other means were employed to warn the passengers of danger. The negligence of the defendant is not disputed, but it is insisted that the plaintiff cannot recover on account of her own contributory negligence. The fact that she knew that the street was being paved in close proximity to the cross walk is not sufficient to charge her with knowledge that the cross walk was dangerous, and that she must therefore cross in a dark night at her own risk. In the absence of some notice travelers have a right to assume that a cross walk is in safe condition. Her testimony was that some days before the accident, and evidently at the time the planks were removed, she was passing along the street,...
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