Howey v. Fisher

• Decision Date: 02 December 1899
• Citation: 122 Mich. 43,80 N.W. 1004
• Court: Michigan Supreme Court
• Parties: HOWEY v. FISHER.

80 N.W. 1004

122 Mich. 43

HOWEY v. FISHER.

Supreme Court of Michigan

December 2, 1899

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Margaret J. Howey against Maxwell M. Fisher. Judgment for plaintiff. Defendant brings error. Reversed.

Elliott G. Stevenson and Robert F. Eldredge, for appellant.

Frank T. Lodge, for appellee.

MONTGOMERY J.

Plaintiff received injuries from stepping on an icy sidewalk. She brings this action against the defendant, who is the owner of a lot abutting upon the street, claiming that the eaves trough upon his house situated on this lot had been for a considerable time out of repair, and that the formation of the ice which caused the injury was the result of water carried from defendant's premises to the walk by reason of such defective eaves trough. The case has once been before the court, and is found reported at 111 Mich. 422, 69 N.W 741. It is contended by plaintiff's counsel that some of the questions raised by defendant are res judicata by the former decision, and it is said that it was held that the case was a proper one for the jury. A reference to the opinion of Mr. Justice Moore on the former hearing will show that it was held--First, that in taking a case from a jury the circuit judge should give his reasons therefor (citing Demill v. Moffat, 45 Mich. 410, 8 N.W. 79); and second, that the case should not have been withdrawn from the jury for the reason given by the trial judge, viz. that there was no evidence of want of repair of the eaves trough or conductor. The holding related to the question of defendant's negligence on the record as it then stood and does not preclude the defendant from contending on this record that the plaintiff was guilty of contributory negligence, or that the defendant was neither in possession of the premises, nor under obligations to keep them in repair. On the last trial the plaintiff testified that she went over the spot at about 5 o'clock that same evening, when it was not quite dark, and that the accident happened between 5 and 6; that she knew this place was icy, and had observed it when going into the house, and had taken particular caution. 'Q. Did you regard that as a dangerous place? A. Yes, sir. Q. Why? A. Because the ice was there. Q. How long had it been there? A. Almost all the time I had been on Duffield street. Q. You went by there frequently? A. Yes, sir. Q. For how long before you got hurt was that ice there, in a condition you thought it dangerous? A. I could not say. Q. Was it there since Christmas? A. Yes sir. Q. You say you were walking carefully when you went by there? A. Yes, sir. Q. Tell us how you walk when you walk carefully. What do you do different from any ordinary walk? A. Well, I was watching the ice, and I was taking particular pains to get across it, and knew it was there, and not a very easy way to get around it, so I walked along. Q. No difficulty in going right out in the street from the door was there? A. I do not know. I supposed sidewalks were supposed to be in repair so that people could walk along them. The street down from the door was paved with cobblestones, and slanted down, and one was as liable to fall there. I did not notice that night, particularly, that there was ice there. Naturally there would be. Q. Was not that used constantly back and forward there beside that door,--milkmen and other folks going in and out? A. I presume they did. Q. No difficulty in going in and out there? A. Considerable snow. Q. No difficulty in going out where those stones were? A. No, sir; it was cleaned off. Q. Any difficulty in going out there where the livery barn was? A. No, sir. Q. Mr. Stevenson was asking you about the care you exercised in walking along. Just state what degree of care, if any, you did exercise in walking along that night. A. Well, I was going along the street, and I knew the ice was there, and I took care; and, had I known I was going to fall---- Mr. Stevenson: Just tell what you were doing. A. I was taking care,--walking along and watching the ice, and taking care not to fall on it. It was a cement sidewalk,--artificial...