Flater v. Fey

• Decision Date: 15 June 1888
• Court: Michigan Supreme Court
• Parties: FLATER v. FEY ET AL.

38 N.W. 656

70 Mich. 644

FLATER v. FEY ET AL.

Supreme Court of Michigan

June 15, 1888

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Action by John Flater against Conrad Fey and the city of Detroit to recover damages for personal injuries. Judgment for defendants, and plaintiff brings error.

James H. Pound, (Ralph Phelps, of counsel,) for appellee Fey, cited Taylor v. Railway Co., 45 Mich. 74, 7 N.W. 728; Cook v. Johnston, 58 Mich. 437, 25 N.W. 388; Daniels v. Clegg, 28 Mich. 33, 47; Le Baron v. Joslin, 41 Mich. 313, 2 N.W 36; Railroad Co. v. Miller, 25 Mich. 274 277, 290; Kelly v. Hendrie, 26 Mich. 255 261, 262; Railroad Co. v. Van Steinburg, 17 Mich. 99, 117; Railroad Co. v. Coleman, 28 Mich. 447; Mabley v. Kittleberger, 37 Mich. 360; Downey v. Hendrie, 46 Mich. 498, 9 N.W. 828; Railroad Co. v. Bangs, 47 Mich. 470, 11 N.W. 276; Foley v. Railway Co., 48 Mich. 625, 12 N.W. 879; Brown v. Railway Co., 49 Mich. 153, 13 N.W. 494; Rhoades v. Railway Co., 58 Mich. 264, 25 N.W. 182; Alpern v. Churchill, 53 Mich. 607-614, 19 N.W. 549; Church v. Detroit, 31 N.W. 447; Detroit v. Chaffee, 37 N.W. 882; Detroit v. Putnam, 45 Mich. 263, 7 N.W. 815; Williams v. Grand Rapids, 59 Mich. 51, 26 N.W. 279.

SHERWOOD C.J.

The plaintiff seeks to recover damages of the defendants for personal injuries received by falling into a ditch dug by the defendant Fey across a sidewalk in front of his premises in the city of Detroit, and left in an unguarded and dangerous condition. No question is made upon the pleadings. The cause was tried in the Wayne circuit court, and the circuit judge directed a verdict for the defendants. The plaintiff brings error. From the record it appears that about 10 days before the plaintiff received his injury the city gave the defendant Fey a written notice to repair his sidewalk in front of his lot. He took up the walk, and, for the purpose of carrying the water off from his lot, he dug the ditch in question, which was about 18 feet long and 18 inches deep, and left it during the night unprotected, and without any warning. The plaintiff was passing along in the evening over said walk, and was unable to discover the excavation until he fell into the ditch, and was injured. He was returning to his home at the time, and stepped off the walk upon the ground before he went into the ditch. The evening was very dark. These facts are substantially uncontradicted, and upon them the court held and charged the jury that the plaintiff was guilty of contributory negligence, and could not recover. Two exceptions raise all the questions there are in the case. One is that the court erred in excluding the following section from the revised ordinances of the city of Detroit: "No person shall dig or tear up any pavement, side or cross walk, or dig any hole, ditch, drain, or sewer in any street, alley, or other public space, without permission first obtained from the board of public works; and it shall be the duty of any man digging or tearing up any pavement, side or cross walk, or digging any hole, ditch, drain, or sewer in any street, alley, or other public space, as speedily as practicable to put the same in as good order and condition as before; and in order to do this, such person shall pound down the earth so as to make it firm and solid, and if the earth shall settle, such person shall fill the same, from time to time as may be necessary, and any person digging in any street, alley, or other public space, or the contractor or owner or owners of property for whose benefit such digging may be done, for any of the purposes whatever, shall erect and maintain a good and sufficient fence, railing, or barrier around such excavation, in such a manner as to prevent accidents, and shall place and keep upon such railing, fence, or barrier suitable and sufficient colored lights during the night." The second exception is to the ruling of the court directing the verdict of the jury for the defendants.

We think both of these exceptions are well taken. The...