Hopson v. City of Detroit

• Decision Date: 07 June 1926
• Docket Number: No. 129.,129.
• Citation: Hopson v. City of Detroit, 235 Mich. 248, 209 N.W. 161 (Mich. 1926)
• Parties: HOPSON v. CITY OF DETROIT.
• Court: Michigan Supreme Court

235 Mich. 248

209 N.W. 161

HOPSON

v.CITY OF DETROIT.

No. 129.

Supreme Court of Michigan.

June, 7, 1926.

Error to Circuit Court, Wayne County; Frank Shepherd, Judge.

Action by Belle Hopson against the City of Detroit. Judgment for plaintiff, and defendant brings error. Reversed, without new trial.

Argued before the Entire Bench.James R. Walsh, and Arthur F. Lederle, both of Detroit (Chas. P. O'Neil, of Detroit, of counsel), for appellant.

Robert M. Brownson, of Detroit, for appellee.

WIEST, J.

This is an action to recover damages for personal injuries. Plaintiff had verdict and judgment for $7,000.

February 20, 1922, at about 8 o'clock in the evening, plaintiff, accompanied by two other women, were walking on the cement sidewalk on the east side of Baldwin avenue in the city of Detroit. The three women walked abreast with plaintiff on the outside. Opposite the Myra Jones public school there was a depression in the walk where it had settled and the cement had disintegrated, and this made the walk lower in the center. In this depression water, from natural causes, had settled with ice at the bottom and a thin layer of water on top. Outside the depression the walk was clean and dry. Opposite this depression, and near the edge of the walk, was a small tree with branches extending over the sidewalk about two feet. When plaintiff, so walking with the other women, arrived at the location of the depression in the walk, an overhanging branch of the tree grazed her face and in trying to keep the branch from scratching her face she ducked, slipped on the ice in the depression, fell, and was injured.

Plaintiff testified that the walk had sunk in the center, and the cement was broken and had disintegrated; that the hole was about four inches deep and had existed for two years at least, and she knew that rainwater settled in the depression and ice formed there in the winter; that she never measured the depth of the depression and did not know exactly the depth thereof, but it might have been two inches deep; and that it was more than one inch deep. A witness for plaintiff thought the depression was three or four inches deep, because she had stepped in the depression and the water went over her rubbers, and she judged ‘a rubber is about three or four inches high,’ but the depression might have been less than three or four inches deep, and might have been two inches deep, but was more than an inch and a half deep.

The chief engineer at the Myra Jones school testified that he inspected the sidewalk the day of the accident; that the walk had sunk in the middle about two inches and made a saucer-shaped depression, but there was no cement broken and no hole in the walk itself.

In the brief of counsel for plaintiff it is stated:

‘The theory upon which defendant's liability in this case is predicated is that when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate-the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible-the municipality is liable, provided the injury would not have been sustained but for the defect. Consequently where as in this case, an injury resulted from the slippery condition of a sidewalk, together with a defect in the walk, the municipality is liable therefore, if the defect in the sidewalk was a proximate cause of the injury.'

We have examined the cases cited in support of this contention. In order to employ the doctrine of a slippery place precipitating one into an unsafe place, there must be an unsafe place to slip into. Whatever the rule may be in other jurisdictions, relative to liability of a municipality for ice upon a sidewalk by action of the elements, the rule obtaining in this jurisdiction places no liability for ice so forming. The rule and the only rule, under which plaintiff could recover, is that, where two causes combine to produce an injury to a pedestrian using a sidewalk, one of the causes at least must be a defect in the walk, rendering the walk not reasonably safe for public travel at any time. Ice on a sidewalk, whether on level places or in depressions, constitutes no defect entailing liability. Gavett v. City of Jackson, 109 Mich. 408, 67 N. W. 517,32 L. R. A. 861;Wesley v. City of Detroit, 117 Mich. 658, 76 N. W. 104;Jefferson v. City of Sault Ste. Marie, 166 Mich. 340, 130 N. W. 610, and cases there cited; Mayo v. Village of Baraga, 178 Mich. 171, 144 N. W....