Hembling v. City of Grand Rapids

• Decision Date: 20 March 1894
• Citation: Hembling v. City of Grand Rapids, 99 Mich. 292, 58 N.W. 310 (Mich. 1894)
• Court: Michigan Supreme Court
• Parties: HEMBLING v. CITY OF GRAND RAPIDS.

58 N.W. 310

99 Mich. 292

HEMBLING v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

March 20, 1894

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Action by Ella R. Hembling against the city of Grand Rapids. Judgment for plaintiff, and defendant brings error. Reversed.

Wm. Wisner Taylor, for appellant.

Francis A. Stace, (McGarry, McKnight & Judkins, of counsel,) for appellee.

McGRATH C.J.

Plaintiff seeks to recover for injuries resulting from a fall upon an alleged defective sidewalk. The testimony tended to show that some of the stringers were decayed, but the planking was in a good state of preservation. The planks were 2 inches in thickness, and some 12 or 14 feet in length. They extended several inches beyond the curb. There was evidence tending to show that just before the injury a horse had been tied to one of these planks, and that just as the plaintiff came along the horse jerked one of these planks out of place, and that plaintiff stepped into the aperture, and fell. The court instructed the jury as follows: "Municipal liability for injuries arising from defects in public ways is the same, so far as concerns innocent persons, whether the condition of the way is due to wear and decay or to the misconduct of individuals in tearing it up; the obligation to repair speedily is the same." This instruction was erroneous. If the plank was displaced, that displacement was immediately before the accident. There was no showing made of actual notice to the municipality, and no pretense that a reasonable time to repair had elapsed; much less had sufficient time elapsed to operate as constructive notice. In any event, the use of the word "speedily" was improper, and was calculated to mislead the jury.

The court further instructed the jury, that "the defect may exist and be unknown, and the city still be liable, on the ground that the prime fault may consist in being ignorant; it being the clear principle that a want of knowledge may, under certain circumstances, imply a want of due care. The general duty of the city is to exercise, through its officers, a reasonable supervision over its streets and sidewalks, and within fairly practicable limits, to be watchful of their condition and trustworthiness, and to see that they are kept in a reasonably safe condition for public travel. Its officers cannot ignore the dictates of common sense and lessons of ordinary experience and refuse to see and refuse to heed what others see and what others understand. Such means should be employed by the officers from time to time in making their examinations as usually disclose the...