Grattan v. Village of Williamston

• Citation: 116 Mich. 462,74 N.W. 668
• Court: Michigan Supreme Court
• Decision Date: 29 March 1898
• Parties: GRATTAN v. VILLAGE OF WILLIAMSTON.

74 N.W. 668

116 Mich. 462

GRATTAN v. VILLAGE OF WILLIAMSTON.

Supreme Court of Michigan

March 29, 1898

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Action by Alexander C. Grattan against the village of Williamston. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F. Cairns and Howard Wiest, for appellant.

Smith &amp Hood, for appellee.

MONTGOMERY J.

The plaintiff recovered a judgment of $500 for injuries received by stepping into a hole in a defective sidewalk. The defendant brings error.

1. The plaintiff, in his declaration, alleged that he was injured on the sidewalk of the defendant, on the south side of Grand River street, at a place or point about 264 feet west of Putnam street. On the trial, the evidence of the plaintiff disclosed that the place where the injury occurred was in fact about 364 feet west of Putnam street. Motion to strike out the testimony was denied, and, at the close of the testimony, the court permitted the plaintiff, by an amendment, to state the correct location in his declaration. This is assigned as error. It is evident to us from the testimony offered by the defendant that the real issue was understood from the first. The president of the village testifies that he was familiar with the walk in front of the Bowerman and Fleming place in 1893, and that, after he heard of the injury to plaintiff, he went up there, to examine it. The walk in front of the Bowerman and Fleming place corresponds in distance from Putnam street to the averment in the amended declaration. It is evident, therefore, that the defendant was not misled. There was no suggestion of surprise, and we think the amendment was warranted.

2. Plaintiff's counsel was permitted to ask him whether, at the time, he was endeavoring to exercise care and caution. We think this question might well have been omitted, as the jury should draw the inference from what was done by the plaintiff whether he was in the exercise of due care and caution; but we are convinced from this record that the defendant suffered no harm from this question being put and answered. The witness had already, upon cross-examination testified fully as to what he did do in passing over the walk; and the circuit judge, in his charge to the jury directed them, in substance, that, in determining whether plaintiff was exercising due care and caution, they must take into consideration the entire circumstances,-what he knew about the walk, what he had known about it, the time of night, the character of the night, and the manner in which he was walking,-and see whether he did exercise due care and caution. This instruction practically excluded all other considerations than those relating to what the plaintiff actually did, and we think the jury could not have mistaken the issue.

3. It is also claimed that, as the plaintiff had knowledge of the defect in the sidewalk, this knowledge was evidence of contributory negligence. This is undoubtedly true, and, as stated before, the circuit judge directed the jury to take into account the knowledge which the plaintiff had of the condition of the walk, in determining the question of whether he used due care. This was all defendant was entitled to. Graves v. City of Battle Creek, 95 Mich. 271, 54 N.W. 757.

4. The court permitted the plaintiff to introduce in evidence a resolution of the common council introduced in May, previous to the time of the injury to plaintiff, requiring a sidewalk to be built from Horton's store, a short distance east of the place of the accident, to the property of C. W. Carr, a point west of the place of the accident. This was received for the purpose of showing knowledge on the part of the authorities of the condition of the walk, plaintiff's counsel at the time disclaiming that it was offered to...