Hart v. Village of New Haven

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, J.
• Citation: Hart v. Village of New Haven, 130 Mich. 181, 89 N.W. 677 (Mich. 1902)
• Decision Date: 26 March 1902
• Parties: HART v. VILLAGE OF NEW HAVEN.

89 N.W. 677

130 Mich. 181

HART v. VILLAGE OF NEW HAVEN.

Supreme Court of Michigan

March 26, 1902

Error to circuit court, Macomb county; James G. Tucker, Judge.

Action by Louis K. Hart against the village of New Haven. Judgment for plaintiff, and defendant brings error. Affirmed.

Seth W. Knight (Charles D. Joslyn, of counsel) for appellant.

O. C Lungerhausen (B. R. Erskine, of counsel), for appellee.

HOOKER J.

The plaintiff claims to have suffered a sprain in the ankle, by stepping into a hole in defendant's sidewalk, upon a dark night, whereby he was incapacitated from business. The jury found a verdict in his favor for $800, and the defendant has brought error.

A number of witnesses testified, upon the part of the defendant, to statements made by the plaintiff, relating to the place and occasion and extent of his injury, some of which tended to show that he was hurt at a different place in the same city; others that the accident occurred, or that the injury was aggravated, at Flint; others that his injury was trifling. The court instructed the jury that: 'As to these statements claimed to have been made by the plaintiff as to the cause of his injury, you are instructed that it is proper to take them into consideration as bearing upon his credibility, and also upon the question of whether or not the injury he complained of was caused in the manner complained of, or in some other different way. In this connection I think I should caution you that this class of evidence,--that is, statements made by witnesses as of admissions or statements made by the plaintiff to them,--should be carefully scrutinized; not because witnesses willfully misstate alleged admissions or statements they may have heard, but because of the fact we know so well by experience how easy it is to be mistaken as to a word or expression uttered by a third person, and which we are undertaking to repeat long afterwards. You have seen it exemplified in this case, where witnesses misspeak themselves, and where attorneys differ as to what their witness has actually said here upon the witness stand.' There was testimony tending to show that officers of the city were notified that the walk in the vicinity was defective and also that the hole complained of was of six months' or a year's standing; while, upon defendant's behalf there was testimony denying actual notice on the part of most of the officers, and testimony tending to show that the walk was not in a dangerous condition. At the time of the alleged accident, the plaintiff was carrying on the livery business. He testified that he was prevented by his injury from being at the barn, and giving it his personal attention, and that, while his receipts for a given time before the accident were a sum stated, they were much less for a corresponding period thereafter, and that he sold out the business soon after. The court was requested by defendant's counsel to instruct the jury that: 'You are instructed that a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in reasonably safe condition for public travel by night as well as by day, but it is not an insurer against accidents; nor is it required to maintain the surface of its sidewalks free from all irregularities, and from any possible obstruction to mere convenient travel. I charge you, as matter of law, that a village, city, or township is not an insurer against accidents to pedestrians passing along their streets or highways, and that all that is required of a village, city, or township is to have their streets, highways, or sidewalks in a reasonably safe condition for public travel; and such reasonably safe condition exists whenever such streets, highways, or sidewalks can be safely passed over by a person who is in the exercise of reasonable and ordinary care.' He refused these requests, and instructed the jury as follows: 'It is the duty of the village authorities to keep the sidewalks along its public streets in a reasonable state of repair, and in a reasonably safe and fit condition for a public travel, so that pedestrians lawfully passing and repassing along and over such walks by day as well as by night may do so with reasonable safety to themselves in the exercise of due care. Personal knowledge of a defect in the sidewalk is not alone sufficient to bar recovery by one injured by reason of such defect. If plaintiff had made it appear that he had not the defect in his mind at the time of the alleged injury, and otherwise exercised due care to avoid the accident, he is not guilty of contributory negligence. However, as I view it, it is not of material consequence in this case, as I think it is my duty to instruct you, that the village, as a matter of fact, did have actual notice of this defective condition alleged to have existed in this walk. There is some dispute in testimony between the officers of the village and the witnesses on the part of the plaintiff, as to whether or not certain ones of them received notice of this alleged defective condition; but, as I remember the testimony, it appears,...