Hayes v. City of West Bay City

• Decision Date: 22 April 1892
• Citation: 51 N.W. 1067,91 Mich. 418
• Court: Michigan Supreme Court
• Parties: HAYES v. CITY OF WEST BAY CITY et al.

51 N.W. 1067

91 Mich. 418

HAYES v. CITY OF WEST BAY CITY et al.

Supreme Court of Michigan

April 22, 1892

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Action for personal injuries by Anna M. Hayes against the city of West Bay City and others. Plaintiff had judgment, and defendant city brings error. Affirmed.

S. P. Flynn, for appellant.

James Van Kleeck, for appellee.

MORSE C.J.

This is an action for negligent injury. The plaintiff recovered judgment in the court below for $1,350.

The first assignment of error is that the defendants were improperly joined. The declaration, in substance, alleges that the defendant city negligently permitted a wooden building, which was moved into Henry street by La France &amp Son, under permission from the city, to remain in said street the night of September 19, 1889, with a timber projecting from under same, without any lights, danger signals, or other suitable warning to persons passing along, over, and on said street, and that plaintiff, without any negligence on her part, while riding in a buggy drawn by one horse, in and along said street, ran onto and against said building, and said timber projecting from under said building, as aforesaid, and was then and there thrown out of said buggy, and sustained an injury to her left arm, elbow wrist, etc., and that by reason thereof the said appellant is liable to her in damages. It is contended by the city that the right of action relied upon against the defendants La France is based purely upon a common-law liability, while that against the city is purely statutory, and that a statutory action cannot be joined with one at common law in this manner. We do not consider this question important, as the case against the defendants La France was withdrawn by the court from the jury at the close of the plaintiff's evidence and thereafter the plaintiff proceeded against the city alone. The declaration was sufficient as against the city without counting upon the statute, as it contained all the necessary averments to bring the case within the statute. Railroad Co. v. Southwick, 30 Mich. 446; Fuller v. City of Jackson, 82 Mich. 482, 46 N.W. 721.

It is claimed, however, that while the trial was proceeding, and before the case against the defendants La France was dismissed, evidence was introduced, tending to show that the work of moving the building was negligently done, and that this evidence prejudiced the defendant city, and could not have been admitted except upon the theory of a joint action against the city and the defendants La France, who had the contract of moving the building. Under our view of the case however, this testimony was admissible as against the city. The record shows that on the 9th of September, 1889, the common council granted a license to the defendants La France to move two buildings on the corner of John and Henry streets, subject to the supervision of the city marshal. The marshal testified that the day the building was moved into the street, and the injury was received by plaintiff, September 19, 1889, at about 4 P. M., he saw the building out in the street, in the process of moving; that timbers had been placed under the sills, to help move it along, the ends of which timbers projected out beyond the building 10 or 12 feet, and from 2 to 2 1/2 feet above the ground. He called the attention of one of the defendants La France to this projection, and told him he thought it unsafe. He did nothing, however, to prevent the building being left in the street overnight in this condition, except as above stated. The...