Griswold v. City of Ludington

• Decision Date: 29 March 1898
• Citation: Griswold v. City of Ludington, 116 Mich. 401, 74 N.W. 663 (Mich. 1898)
• Court: Michigan Supreme Court
• Parties: GRISWOLD v. CITY OF LUDINGTON.

74 N.W. 663

116 Mich. 401

GRISWOLD v. CITY OF LUDINGTON.

Supreme Court of Michigan

March 29, 1898

Error to circuit court, Mason county; James B. McMahon, Judge.

Action by A. Linley Griswold against the city of Ludington.From a judgment of nonsuit, plaintiff brings error.Reversed.

Cutcheon & Swarthout(A. A. Keiser, of counsel) for appellant.

H. G Reek (E. N. Fitch, of counsel), for appellee.

LONG J.

This suit is brought to recover for personal injuries claimed to have been received by plaintiff from falling through a hole in a sidewalk in the city of Ludington, October 19, 1896.Defendant is a city of the fourth class.The declaration contains four counts.The first alleges the injuries to plaintiff from falling through an open hole in the sidewalk about eight inches by four feet in dimensions, at a point where the sidewalk was raised four feet above the level of the ground, and supported upon posts and blocks in the manner of a bridge or trestle.The second count, while embracing all the substance of the first, relies especially upon the defective construction of the walk, it being raised about four feet above the ground, in the manner of a bridge or trestle, and having no supports between the stringers, which were four feet apart, and being constructed of improper masonry and weak material.The third count is upon a weak defective, and broken plank in the sidewalk, and does not differ materially from the first count.The fourth count embraces all the features of the first and second as to the existence of the hole, and the construction and defective condition of the walk, and then alleges that "also in view of the peculiar construction of the said sidewalk so raised above the ground in the manner of a bridge or trestle and of the manner in which it was supported upon posts and blocks, and of the fact that the said sidewalk was constructed in a negligent and careless manner, and of unsound, inferior, and improper materials, and in view of the danger to persons passing over the same, and that the said sidewalk had become old, decayed, and weakened, and that some of the planks in said sidewalk had become loosened, weak, and dangerous, especially at night, when it was impossible to see or to avoid holes and defective places or weak or loosened planks in said sidewalk, it became and was the duty of the said defendant to cause the said street and the said sidewalk to be suitably lighted by night, especially in the early hours of the evening, when said street and sidewalk was frequented by many persons going to the railroad station to take the outgoing trains; and plaintiff avers that the said street was not in a condition reasonably safe and fit for public travel without being lighted; and that defendant, well knowing the dangerous and unfit condition of the said sidewalk, negligently and wrongfully turned off the lights upon said street and sidewalk, so as to leave the same in darkness, and render it impossible for persons to perceive and avoid the dangerous places therein."Upon the hearing the court sustained the declaration to the first three counts, and sustained the demurrer to the fourth, holding that it stated no cause of action.The defendant demanded a bill of particulars of the plaintiff's claim, which plaintiff furnished.Defendant thereupon pleaded the general issue, and gave notice of special matter of defense, under the charter, that plaintiff's claim had not been presented to the common council of said city, verified or certified, as required by the charter.The cause came on to be heard before a jury on June 28, 1897.Plaintiff introduced testimony tending to show the defective condition of the sidewalk, the existence of the hole at the place averred, and of the dimensions claimed; that the hole had existed there in the same condition for about four months, and had been observed by various witnesses in July, August, September, and October, 1896.Plaintiff testified that upon the 19th day of October, 1896, in the evening, it being very dark and stormy, and slush upon the sidewalk, and while going to the railroad station, he suddenly and unavoidably fell into said hole; that he went down the entire length of his leg, causing severe injuries, etc.; that on December 17th he served upon the city clerk a notice in writing as follows: "The Common Council of the City of Ludington, Mich.-Gentlemen: You are hereby notified that on the 19th day of October, 1896, at about the hour of seven o'clock in the evening, I was seriously and permanently injured and disabled by falling into and through a hole or opening in the sidewalk on the south side of Foster street, near the intersection of Charles street, in the said city of Ludington, at a point in front of the building owned by August Tiedemann and William C. Ungers, and about forty-three feet west of the point where the south line of Foster street intersects with the west line of Charles street.That said injury and disability were caused by a defect in the sidewalk on said street, at the point designated, produced by a broken plank.That the manner of said injury was as follows: I was passing along said street, upon said sidewalk, with all due care and caution, and without any negligence on my part, the night being very dark and stormy, and I being almost a stranger in the city, and without any fault on my part I unavoidably stepped with my right foot into said opening or hole in the sidewalk, and fell heavily upon and along the said sidewalk; and, the sidewalk at the point aforesaid being raised considerably above the natural surface of the ground, my foot went down the entire length of my right leg, and, the sidewalk being wet and slippery, my left foot slipped and slid upon the sidewalk, so that I fell with my whole weight upon the parts of my body between the legs, very greatly bruising and injuring the testicles, scrotum, spermatic cord, and the parts adjacent to the rectum, and also greatly bruising, straining, and contusing the hips and the lower parts of the spine.The injury to the genital and urinary organs was such that I have been subject to great pain and distress ever since, and have been unable to stand upon my feet without supporting the said parts by means of a suspensory bandage.And the muscles, nerves, and ligaments of the rectum were so bruised, strained, and injured that it has been difficult, and at times impossible, to control the action of the bowels; and the hips and spine have been so strained, shocked, bruised, and contused that, in consequence of the said various injuries, I was confined to my bed, and under the charge and care of physicians, for a period of three weeks, and am still able to walk only with difficulty and much pain, and by the aid of crutches.That there were no other witnesses present at the time of said injuries.By reason of said injuries, so received through the said defective sidewalk, I have been put to great cost and expense for doctor's bills, for nurses and attendance, for medicine and suspensory bandages, crutches, and other appliances, and for other large outlays; and have been disabled from performing my professional work as a minister of the gospel at the village of Custer, where I reside; and have been caused to suffer very great pain and distress of body, and also great pain, anxiety, and distress of mind, and have been permanently and seriously injured and disabled thereby; on account of all which injuries, bruises, wounds, and disabilities, costs, expenses, charges, loss of time and services, pains, sufferings, and permanent injuries, I claim damage from the said city of Ludington to the amount of five thousand dollars.And you are further notified that I have appointed Messrs. Cutcheon & Swarthout, 831 Michigan Trust Company Building, Grand Rapids, Mich., to represent me and act for me as my attorneys in all matters pertaining to this claim.Very respectfully, A. Linley Griswold.Dated December 17, 1896."Plaintiff was then asked by his counsel to state what further was done between himself and the council of the city after this notice was served, and answered, "There was a conference had between a council committee and myself."He was then asked, "Who were present?" and stated that he could not name all the members of the committee.The inquiry was objected to and sustained, the court stating that there was no showing that any committee was authorized by the common council to treat with the plaintiff; that the showing was that some people met whose names could not be specified, and assumed to act as such committee.No further proof was then offered upon that point, and no showing made that this committee was authorized by the common council to act or who composed the committee.Plaintiff then introduced a letter from the city clerk to his attorneys, dated January 20, 1897, as follows: "Gentlemen: At a meeting of the common council held Monday evening last I was instructed to notify you, as attorneys for Rev. Griswold, that no damages would be offered him for the alleged injuries received last October.Yours, U.S. Grant, City Clerk."Plaintiff then offered in evidence the record of the common council, which read: "On motion of Alderman Smith, the city clerk was instructed to notify the attorneys of Rev. Griswold that no damages would be offered him for alleged injuries incurred on October last."Plaintiff then gave evidence of the extent of his injuries, the employment of a physician, etc.Plaintiff was then asked "whether, at your interview on that day with the mayor of the city or with the clerk of the city, or with the supposed committee that you had the conference with, or with anybody else connected with the defendant city, any question was made upon the ground that your claim had not been sworn...