Germaine v. City of Muskegon
| Decision Date | 30 April 1895 |
| Citation | 63 N.W. 78,105 Mich. 213 |
| Court | Michigan Supreme Court |
| Parties | GERMAINE v. CITY OF MUSKEGON. |
Error to circuit court, Muskegon county; Fred J. Russell, Judge.
Action by Charles Germaine against the city of Muskegon for injuries sustained by reason of a defective sidewalk. From a judgment for plaintiff, defendant brings error. Affirmed.
Brown & Lovelace, for appellant.
Jones & Clark, for appellee.
A sidewalk in the defendant city was constructed of plank two by four inches laid crosswise. Plaintiff's case was that one of these planks had been removed; that he stepped into the hole on the night of December 10th, fell, and broke his arm. For this injury he recovered verdict and judgment.
1. Defendant objected to the admission of any testimony under the declaration, claiming that it did not state a cause of action. The precise objection is that the declaration does not allege that the defect existed for such a length of time before the accident as will justify a presumption of notice which takes the place of actual notice. The objection is not good. The declaration alleges that the defendant well knew or by the exercise of reasonable care ought to have known the existence of the defect. Good pleading might perhaps require a more definite allegation, but, in the absence of a demurrer, the declaration must be held good.
2. The charter of the defendant city prevents the institution of suits against it until a claim duly verified has been presented to the common council. Plaintiff's claim was presented and verified by oath administered by Mr. Clark, one of the plaintiff's attorneys. It is insisted that under How. Ann. St. � 637, Mr. Clark was prohibited as a notary public from administering the oath. This statute prohibits attorneys from administering oaths "in causes in which they may be professionally engaged." Jones & Clark had at that time been engaged by the plaintiff to prosecute his claim, but no suit had been instituted. We need not decide whether the affidavit is within the prohibition of the statute. The charter further provides that if the claim is presented without an affidavit, and rejected for that reason it shall be a sufficient defense in any court to any action or proceeding for the collection of the claim. This claim was not rejected for that reason, and the defect was therefore waived.
3. Error is alleged in the refusal of the court to instruct the jury that, if the plank was in its place on the 8th or 9th of December, the verdict should be for the defendant. This instruction should have been given, but the jury, in reply to a special question, found that it was not in place on either of those days. The error, therefore, was one without prejudice.
4. It was not error to instruct the jury, under the facts of this case, that the plaintiff had a right to travel on the sidewalk, and the mere fact that he did so travel, even with the knowledge that there was a hole in the walk, is of itself no evidence of negligence on his part, unless the place was so dangerous that a prudent man would not have traveled on the walk. Sidewalks are intended for the use of pedestrians and they are entitled to walk upon them, and are entitled to do so even if they have knowledge of a defect like the one in question.
5. It is argued that, under the charge of the court, the jury were permitted to base a verdict upon a failure to inspect the sidewalk,-an act of negligence not set forth in the declaration. What the court said upon this subject had a direct reference to the knowledge or notice of the defect. After stating to the jury...
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