King v. Colon Tp.

• Decision Date: 29 January 1901
• Citation: 84 N.W. 1077,125 Mich. 511
• Court: Michigan Supreme Court
• Parties: KING v. COLON TP.

84 N.W. 1077

125 Mich. 511

KING v. COLON TP.

Supreme Court of Michigan

January 29, 1901

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action by Mary King, by David King, her next friend, against the township of Colon. Judgment for plaintiff, and defendant brings error. Reversed.

On June 1, 1899, plaintiff, then 14 years of age, on her way home from school stepped into a hole in the public highway, by reason of which she claims to have received injury. Nearly 5 years afterwards she instituted this suit, through her father, to recover damages therefor. At the place of the accident the land was low. It had been filled in, and a tile put through the fill to allow the passage of water. In the north wheel track the tile had been broken in, leaving a hole about 18 inches deep. This had existed for some months. Plaintiff testified that she was walking forward when she stepped into the hole. A schoolmate testified that she and plaintiff were running a race backward when she stepped in. She walked home, a mile and a half, after the accident without difficulty. It is claimed by the defendant that the injury from which she suffered was caused afterwards, by a horse stepping upon her foot. This claim is sustained by several disinterested witnesses, but denied by plaintiff. Her own testimony as to the manner of the accident is as follows 'The hole in the tile was broken through in the fall or early spring of '88 or '89. It might have been before that time. I noticed the hole some time before I stepped into it, having passed it twice each day during the school days. I went to school in the morning and came home in the afternoon of that day, and the hole was perfectly visible, and I had no difficulty in seeing it was there, and I had no difficulty in seeing where the wagon tracks were. On this day the school let out at 4 o'clock in the afternoon, and I started home as soon as it was out, and it was probably fifteen or twenty minutes after 4 when I got to the place where the hole was in the tile. It was some time the latter part of May or in June and it was broad daylight. There was nothing to hinder me from seeing the hole, and if I had been looking down at the ground I would have seen it, as I had known that it was there for a long time, and there was plenty of room to go around the hole. I had walked around it day in and day out as I passed. There might have been some difficulty if I had followed directly in the wagon tracks in passing the hole, as there was a mud puddle, and there would have been no difficulty about getting by there without getting into the hole. I was paying absolutely no attention to where I walked. I do not know as I thought about the mud puddle being there.'

Howard, Ross & Howard and H. P. Stewart, for appellant.

Alfred Akey and D. L. Akey, for appellee.

GRANT J. (after stating the facts).

I have examined all the negligence cases decided by this court--and they are many--against townships and cities for defective highways and sidewalks. I find none which presents the exact question now before the court. Plaintiff knew of the defect. It was apparent to any one. Travelers by carriage had made a new wheel track around it. She had passed it twice nearly every day for weeks. She was a girl of sufficient are and intelligence to, and did, appreciate the danger, and the necessity of avoiding the hole. She knew she was in its vicinity. She knew that a single glance would show her where it was, and that there was not the slightest difficulty in avoiding it, as she had always done before. If plaintiff's contention be the law, then the familiar rule that what one can, by the exercise of the slightest prudence or care, see, he must be held to have seen, does not apply to persons traveling in our public highways and streets. No excuse is given, except that she did not look. Is there no duty imposed upon travelers to look when they are traveling upon the public highways, in the very presence of known defects and danger? The court charged the jury that 'it was the duty of Mary King, in passing along, to use ordinary care and prudence, and this care and prudence must be commensurate with the fact that she knew the hole was in the road; and if, by the exercise of ordinary care and prudence, she could have avoided it, she could not recover.' Where can a jury find acts of care and prudence where one walks into a known dangerous place without looking? The court further said to the jury: 'The defendant claims that the plaintiff was not in the exercise of ordinary care that she knew of the defect in the highway; that she paid no attention to it; that she was running a foot race backward at the time she stepped into this hole. If you find that the claim of the defendant is true, then, however negligent the township may have been, she could not recover.' The first two facts referred to in the above instructions, viz. that she knew of the defect and paid no attention to it, were admitted. The third alone was denied. Under this branch of the charge the jury would have been justified in finding that if she was not running a foot race backward she was entitled to recover. What is the difference in result or in principle between walking backward into a known and apparent danger, and walking forward into the same danger...