Goodrich v. Kalamazoo Cnty.

• Decision Date: 23 February 1943
• Docket Number: No. 11.,11.
• Citation: 304 Mich. 442,8 N.W.2d 130
• Parties: GOODRICH v. KALAMAZOO COUNTY.
• Court: Michigan Supreme Court

304 Mich. 442

8 N.W.2d 130

GOODRICH

v.KALAMAZOO COUNTY.

No. 11.

Supreme Court of Michigan.

Feb. 23, 1943.

Action by Sophia Goodrich, administratrix of the estate of Lottie Juanita Goodrich, deceased, against Kalamazoo County to recover for the death of Lottie Juanita Goodrich, deceased, allegedly as result of collision with alleged obstruction in highway. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed without a new trial.

Appeal from Circuit Court, Kalamazoo County; James E. Spier, judge.

Before the Entire Bench.

Howard, Howard & Howard, of Kalamazoo, for plaintiff and appellee.

Sweet & Paulson and Raymond W. Fox, Pros. Atty., all of Kalamazoo, and L. J. Carey and George J. Cooper, both of Detroit, for defendant and appellant.

NORTH, Justice.

This is an action brought by plaintiff as the administratrix of the estate of Lottie Juanita Goodrich, deceased, against Kalamazoo county to recover damages for the death of plaintiff's decedent, caused by injuries resulting from a collision with an alleged obstruction in the highway. Plaintiff had judgment and defendant has appealed.

On March 11, 1941, about 8:15 in the morning plaintiff's decedent, aged 16 years, was a passenger in an automobile owned and driven by her sister, Bernice Goodrich, on a north and south county road, known as the Pickeral Lake road in Kalamazoo county, Michigan. This road was surfaced with tarvia or black-top, to a width of about 14 feet and had dirt and gravel shoulders to a width of about three feet. At or near the point of the accident there are several trees alongside the paved portion of the road. One tree being approximately 30 inches from the east edge of the pavement. The car in which decedent was riding was proceeding in a northerly direction and at a point near or opposite this tree the car either went out of control of the driver or skidded on the pavement, ran off the east edge of the pavement, and its right front collided with the tree which was about 30 inches from the edge of the pavement. There was present no emergency caused by other vehicles, persons or objects in the highway. As a result of this collision Lottie Juanita Goodrich received injuries from which she died.

Plaintiff makes no claim that the pavement was out of repair; though it is noted that from the center this pavement sloped toward either edge for the obvious purpose of drainage, but such construction cannot be considered negligent. Any question of contributory negligence on the part of the driver must be disregarded because decedent was a minor and the negligence of the driver of the vehicle cannot be imputed to her. It is conceded that this highway was under the control of the defendant county, and that defendant had notice of the claimed defective condition, i. e., the tree standing near the pavement.

The controlling question in the instant case may be stated as follows: Under the circumstances of this record, was there an issue of fact for the jury's determination as to defendant having been guilty of negligence which was a proximate cause of the accident by permitting the tree to remain standing approximately 30 inches from the edge of the pavement and within the shoulder area? As stated in appellee's brief this question reads: ‘Is proximate cause and the defendant's negligence a question of fact for the jury where the defendant permits a tree to stand in the shoulder of the road within two feet six inches of tarvia so constructed that it slopes towards the tree?’

The instant case is somewhat novel, and we do not find another case in this jurisdiction squarely on all fours. It must be noted that liability of defendant county for defects in a county road is a liability imposed only by statute. Comp.Laws 1929, § 3996 (Stat.Ann. § 9.121). There was no common law liability.

‘We have frequently held that the liability of municipalities [counties] for injuries upon highways is purely statutory, is in derogation of the common law, and cannot be enlarged by construction.’ Brown v. Township of Byron, 189 Mich. 584,55 N.W. 544, 545.

The responsibility of the defendant county is only that the highway be kept ‘reasonably safe and convenient for public travel.’

‘The township [or county] is not obliged to keep its highways absolutely safe for travel. The statute only requires that it shall keep them reasonably safe and fit for public travel.’ Harris v. Clinton Township, 64 Mich. 447, 31 N.W. 425, 429,8 Am.St.Rep. 842.

It is quite uniformly held that the above noted duty of the public authorities applies to the traveled portion of the road and not to the entire width of the highway.

‘It is never expected that travel will occupy all parts of such highway, nor can there be any requirement that the public authorities shall prepare for it.’ Keyes v. Village of Marcellus, 50 Mich. 439, 15 N.W. 542, 543,45 Am.Rep. 52.

‘A defect in a highway is something that interferes with movement over it. Roads in good condition made dangerous by something on the sides of them are not for that reason defective within the meaning of the statute * * *.’ Bohm v. Racette, 118 Kan. 670, 236 P. 811, 813, 42 A.L.R. 571.

‘It was not incumbent on the county to keep the full width of a county road open and fit for travel. It is generally held that, if it was open and improved for a sufficient width, to make it reasonably safe and convenient for ordinary travel, it is enough, and that, if the local authorities do so, it is not compelled to keep the sides of the prepared way free from obstructions.’ Arnold v. Coffey County Commissioners, 135 Kan. 551, 11 P.2d 729, 730.

The shoulder of the road has been held not to be a part of the ‘wrought’ or ‘traveled’ portion of the road.

‘As already indicated, we think the statute...