Harris v. Clinton Tp.

• Decision Date: 20 January 1887
• Citation: 31 N.W. 425,64 Mich. 447
• Court: Michigan Supreme Court
• Parties: HARRIS v. CLINTON TP.

31 N.W. 425

64 Mich. 447

HARRIS v. CLINTON TP.

Supreme Court of Michigan

January 20, 1887

Error to Macomb.

Action for damages against a township. Judgment for defendant. Plaintiff appeals.

Franklin P. Montfort, (T.M. Crocker, of counsel,) for appellant.

Eldridge & Spier, for defendant.

CHAMPLIN J.

The plaintiff is the proprietor of a livery stable in the village of Utica. On the morning of May 7, 1885, he let a horse and buggy to Andrew T. Sopher to make a trip to Mount Clemens. The road from Utica to Mount Clemens crosses the north branch of the Clinton river by a bridge. The approach to this bridge from the west was over low land, and the highway passed over an embankment for a distance of about 480 feet. The height of this embankment varied from 4 to 17 feet on the north side. The width of the roadway at this point varied from 14 to 18 feet. The road-bed had been constructed along the line of what had been a mill-dam, and was not upon a straight line. In passing west the first object crossed would be the bridge over the north branch of Clinton river, which, on the day referred to, was above water. Proceeding westward, the embankment turned nearly to the north-west to a point marked by a thorn tree, which stood in the south edge of the embankment, a distance of 202 feet from the bridge. Opposite this tree, for a short distance, the land upon the embankment on the north side appeared to be about seven inches above water. At this point the embankment curves to the left, and proceeds in a nearly south-west direction for a distance of 120 feet, when it curves again and travels in a north-westerly direction to high land, a distance of 185 feet. Opposite the last-mentioned curve, the middle branch of the Clinton river had encroached upon the embankment, and washed away a portion, narrowing the surface at this point to 14 feet. This embankment had for many years been subject to overflow from the waters of Clinton river, on occasions of freshets caused by rain-fall; and on the day above mentioned was submerged, with the exception of the point opposite the thorn tree, to the depth of from two feet to two and one-half feet. There was no railing or other protection to prevent persons traveling the highway from going off the embankment, or to indicate where the roadbed was when covered by water.

Mr Sopher was familiar with the road, and knew its general condition and character. He went over the place in question on his way to Mount Clemens, and found it covered with several inches of water, but had no trouble in making the crossing. This was about midday. At about 6 in the afternoon he started to return home. He reached the river before dark and saw that the water had raised considerably during the afternoon. He attempted to drive across, and had proceeded to the point where the middle branch had previously washed away a part of the embankment, when, as he testifies, his horse and wagon went off the embankment on the right-hand side; that he sprang out of the wagon upon grade. His horse turned short to the left, and came upon the embankment. He tried to turn him to the right, but he acted as if crazed, and plunged straight across the embankment into the deep waters which overspread the flats, and was drowned. The cushions and whip were lost, and the wagon was somewhat injured.

Plaintiff brought this action to recover damages for the loss of the horse, and injury to his wagon, and bases his right to recover upon the alleged negligence of defendant in suffering the embankment and approach to the bridge to be kept and maintained in a crooked, narrow, winding, washed, tortuous, uncertain, and overflowed condition, misleading and deceiving persons traveling the same, and in wrongfully and negligently failing to erect any railing and guide or barrier along such embankment and approach to the bridge, to prevent persons from driving into danger and deep water on either side of the same, and wrongfully and negligently failing to place any barrier or warning to prevent persons from driving upon and along said highway embankment while said crooked approach to the bridge was washed and overflowed with water, and deceiving and misleading to travelers, and wrongfully and negligently suffered such defective highway, so overflowed, to remain open to travelers. The declaration also alleged that Sopher was ignorant of the unsafe and perilous condition of such highway embankment and approach to such bridge, and, being misled and deceived by the narrowness, crookedness, windingness, and uncertainty of said highway embankment, and not being in any manner warned thereof, or prevented, upon such highway embankment, and without fault on his part, drove upon said bridge and embankment.

After the testimony was closed, the circuit judge took the case from the jury, and directed a verdict for the defendant, upon the ground that Sopher, who was plaintiff's bailee of the property at the time, was guilty of contributory negligence. He instructed the jury as follows: "If a person, with full knowledge that a highway is unsafe at a particular place, undertakes to pass such dangerous point, he should be held to have done so at his own risk; and if, in this case, Sopher knew that the road was overflowed; that the embankment was narrow and winding; that there were no guard-rails, barriers, or monuments to indicate where the road was; that where it was so overflowed it was dangerous to cross; and, possessing such knowledge, he undertook to pass such dangerous point,--he should be held to have done so at his own risk. And it appears from his evidence that he was familiar with this road, and had traveled it frequently for many years. he knew that it was winding, and states that he heard that others had got into difficulty in undertaking to cross when it was overflowed, and what course he thought he ought to follow in order to avoid an accident; but that he made a mistake by being misled by a little spot of land that was not overflowed, and went further to the right than he should have done, and the horse got off into deep water. He had crossed the embankment that same afternoon, relying upon his familiarity with it, and it was then overflowed with water. When he returned, he saw that the water was higher, and knew that the risk was greater, but he preferred to take his chances of navigating safely across, rather than seek some other route, or wait a few hours until the water had subsided."

We do not think the facts disclosed by the record showed clearly and undisputedly that the plaintiff's bailee was guilty of contributory negligence. Upon this issue there are two reasonable but different views which might be taken, and therefore the question should have been submitted to the jury. The fact that Sopher knew the location of the highway that it was crooked; that there were no guides or barriers; that it was overflowed, and the water had raised since he last passed over it, and knew that some hazard was incurred in attempting to pass over it,--did not conclusively show that it was negligence in him to make the attempt. Of course, the increased hazard from the rising of the water called upon Sopher to exercise increased caution, and may have been a circumstance which, in the opinion of some persons, should have determined him not to make the attempt at all; but whether it was or not, in connection with the other facts, should have been left with the jury to determine. It is not a universal rule that the defendant is excused from liability merely because the plaintiff, knowing of the danger caused by defendant's negligence, voluntarily incurs that danger. If the defendant has so acted as to induce the plaintiff, acting with reasonable prudence, to incur the danger, or if plaintiff, by defendant's negligence, is placed in a situation of peril, to escape which he voluntarily incurs another danger, the defendant is liable, although the plaintiff may not in the emergency have pursued the course which ordinary prudence would have dictated. The danger in this instance consisted in the liability of driving off the embankment because it was more or less obscured by the...