Hunter v. Village of Durand

• Decision Date: 25 June 1904
• Citation: 137 Mich. 53,100 N.W. 191
• Court: Michigan Supreme Court
• Parties: HUNTER v. VILLAGE OF DURAND.

100 N.W. 191

137 Mich. 53

HUNTER v. VILLAGE OF DURAND.

Supreme Court of Michigan

June 25, 1904

Error to Circuit Court, Shiawassee County; Stearns F. Smith, Judge.

Action by James Hunter against the village of Durand. Judgment in favor of plaintiff, and defendant brings error. Affirmed.

An instruction assuming as a fact a material, controverted matter, which is not proven, is erroneous.

Byron P. Hicks (Albert L. Chandler, of counsel) for appellant.

Rowland M. Connor, for appellee.

CARPENTER J.

On the evening of October 30, 1898, plaintiff claims that he received injuries by a fall on a defective sidewalk in defendant village. He brought this suit to recover compensation, and secured a verdict and judgment in the court below. Defendant asks us to reverse that judgment for various reasons.

1. It is contended that a verdict should have been directed for defendant because plaintiff did not give the notice required by sections 2754, 2775, Comp. Laws 1897. Plaintiff did on the 28th of November, 1898, give the defendant a notice which in all respects complied with the law, except that it was not verified, as this court has held, in Griswold v Ludington, 116 Mich. 401, 74 N.W. 663, it should be. The question arises whether the evidence does not prove that defendant waived this lack of verification. When the notice was received, none of defendant's officials objected to the lack of verification, and its common council appointed an investigation committee, empowered 'to incur such expenses in such investigation of the injuries sustained by said Hunter as they may think proper'; and on the following day, November 29th, expert physicians employed by said committee subjected plaintiff to a very painful physical examination. We are bound to say that this constituted a waiver of the want of verification. See Lindley v Detroit (Mich.) 90 N.W. 665; Holtham v. Detroit (Mich.) 98 N.W. 754. Under these views, the circuit judge might very properly have instructed the jury to find that the undisputed facts proved a waiver. It is therefore unnecessary to determine whether he erred in admitting testimony or in charging the jury respecting that question. Neither can we accede to the legal proposition that evidence of waiver is inadmissible under a declaration alleging performance. Dean v. Crall, 98 Mich. 591, 57 N.W. 813, 39 Am. St. Rep. 571; Levy v. Peabody Ins. Co., 10 W.Va. 560, 27 Am. Rep. 598; West Rockingham Ins. Co. v. Sheets, 26 Grat. 854.

2. It is contended that the court should have directed a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence. This contention is based upon the fact that it appears by plaintiff's testimony that he knew of the existence of this defect several weeks before his injury. We cannot assume from this testimony that plaintiff believed at the time of his injury that this defect continued to exist. Indeed, we are bound to assume from his testimony that he believed it did not. He knew that repairs had recently been made in its vicinity, and the jury were clearly warranted by his testimony in finding that he had a right to believe, and did believe, this defect to have been remedied. Under the decisions of this court, the question of plaintiff's negligence was one for the jury. Whoram v. Argentine, 112 Mich. 20, 70 N.W. 341; Urtel v. Flint, 122 Mich. 65, 80 N.W. 991; Dundas v. Lansing, 75 Mich. 499, 42 N.W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457; McEvoy v. Sault Ste. Marie (Mich.) 98 N.W. 1006; and Belyea v. Port Huron (decided May 17, 1904) 99 N.W. 740.

In this connection we will notice certain assignments of error respecting the charge of the court on the subject of contributory negligence. The court denied defendant's request that 'if plaintiff was guilty of any act, or the omission of any act, which in itself was negligence, and contributed to the injury received, it would make no difference how slight the negligence may be, if it contributed to the result, it defeats recovery.' In Benedict v. Port Huron, 124 Mich., at pages 605, 606, 83 N.W. 616, this court refused to reverse a judgment where the trial judge used the above language, saying: 'The language quoted from the charge might, under some authorities, be objectionable if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence.' It is thus made clear that the request under consideration is not legally exact. It implies an obligation on plaintiff's part to exercise more than ordinary diligence. There was no error in denying this request, and in charging the jury as the trial court did: 'The plaintiff will not yet be entitled to recover unless he has shown to you by a preponderance of the evidence that his own negligence did not contribute to his injury. If the plaintiff herein might have avoided the consequences of defendant's negligence, but did not, he cannot recover.'

Defendant preferred other requests on the subject of contributory negligence, which the court properly refused. These requests either improperly assumed that plaintiff's eyesight was defective, or that he had knowledge of the existence of the defect at the time of his injury, or they were opposed to the principle heretofore stated that the circumstance that the plaintiff supposed the walk to have been repaired made the question of his negligence one for the jury.

3. Defendant claims that there was no evidence of negligence which justified the submission of the case to the jury. There was evidence that this hole had been in existence for two or three months, and that it was obvious to passers-by. This evidence clearly justified the jury in finding that the existence of the hole was generally known, and that defendant was negligent. See the decision of Pearl v. Township of Benton (herewith filed) 100 N.W. 188. The charge respecting defendant's negligence was a clear and correct statement of the law. It was not inconsistent with our decision in Thomas v. Flint, 123 Mich. 10, ...