Knapp v. City of Detroit

• Decision Date: 13 November 1940
• Docket Number: No. 41.,41.
• Citation: 294 N.W. 692,295 Mich. 311
• Parties: KNAPP v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

295 Mich. 311

294 N.W. 692

KNAPP

v.CITY OF DETROIT et al.

No. 41.

Supreme Court of Michigan.

Nov. 13, 1940.

Action by Anna L. Knapp against the City of Detroit, a municipal corporation, Department of Street Railways, and the City of Hamtramck, a municipal corporation, jointly and severally, to recover for personal injuries sustained by the plaintiff when she fell after alighting from a street car operated by the City of Detroit, at a place where there was a hole in the pavement. From a judgment entered on a directed verdict in favor of the defendants, the plaintiff appeals.

Judgment reversed, and case remanded for further proceedings.

BUTZEL, J., BUSHNELL, C. J., and BOYLES, J., dissenting in part.

Appeal from Circuit Court, Wayne County; Mark D. Taylor, judge.

Argued before the Entire Bench.

Adrian D. Rosen, of Detroit (Albert Summer, of Detroit, of counsel), for appellant.

A. Albert Bonczak, of Detroit, for appellee.

NORTH, Justice.

This is an appeal in a personal injury case from a judgment entered on a directed verdict in favor of the defendants. On November 13, 1936, in the afternoon, plaintiff was a passenger on one of the street cars operated by the defendant, City of Detroit. The car was northbound on Joseph Campau Avenue in the City of Hamtramck. Plaintiff alighted at a regular car stop, designated as a ‘safety zone’, which is merely a marked off portion of the street next to the car tracks, in front of one of the entrances to the Dodge automobile plant. She had taken only two or three steps in a northeasterly direction when she stepped into a hole in the pavement within the safety zone and fell, severely injuring herself. At the time both the street car and the safety zone were crowded by workmen going to the Dodge plant. Plaintiff testified that because of the crowded condition of the safety zone she did not see the hole until after she had fallen.

After plaintiff had called all her witnesses, except two doctors who were to testify as to the extent of her injuries, the trial judge directed a verdict in favor of the City of Detroit, on the theory that under the facts in the case the City of Detroit could not have been guilty of negligence. And after one of its witnesses had been called the trial judge directed a verdict in favor of the City of Hamtramck on the ground that plaintiff had failed to file a sworn claim with the city council within the period of 60 days required by the charter of the City of Hamtramck.

The first question presented for decision is as to whether as a matter of law the City of Detroit was free of negligence. It is agreed by the parties and it is the general rule that ‘it is the duty of the street railroad carrier to at least exercise proper care to see that the place of alighting is safe-not to stop a car for alighting passengers at place known to be unsafe.’ Spangler v. Saginaw Valley Traction Co., 152 Mich. 405, 116 N.W. 373, and authorities cited, p. 411. It is the contention of the defendnat City of Detroit that when the plaintiff reached the surface of the street safely, the relationship of passenger and carrier ceased and that thereafter any mishap could not be attributable to its negligence. The courts of some states have reached decisions agreeing with this contention. Lenoue v. Worcester Consolidated Street Railways, 257 Mass. 285, 153 N.E. 533;Gerlach et ux. v. City of Philadelphia, 103 Pa.Super. 401, 157 A. 212. We cannot agree with this contention. Instead we are constrained to follow the rule of the Spangler case, supra, and the rule of the majority of states, that the carrier may not negligently invite the passenger to alight at a point where a few steps will plunge him into disaster without warning him of the danger.

In 1 Nellis on Street Railways, 2d Ed., § 308, it is said that: ‘A street railway company is required to exercise the highest degree of care for selecting a place for the stopping of its cars to allow passengers to alight. The duty imposed upon a street railway company is to select a reasonably safe place for landing its passenger, and to make such selection with reference to getting off the car while the same is at rest. It is as nuch the duty of the company to see that the place where it stops to permit passengers to alight is such that they may alight safely as it is to carry passengers safely while they are on the cars; or, in case it becomes necessary to invite passengers to alight at a point where there is danger of injury, to give such warning or such assistance, or both, if necessary, as to prevent injury. When a car stops for a passenger to alight it is the duty of the company's servants to know that the place is a reasonably safe one, and a passenger has a right to assume that such is its condition unless it is obviously dangerous. * * * In case of a passenger injured in alighting from a street car owing to the condition of the street, it is said that liability exists where the dangerous condition of the street is known or could have been known to the street railway company, but is unknown to the alighting passenger, unless he is warned or assisted to a safe place. * * *’

This rule was expressly approved and applied in Mayhew v. Ohio Valley Electric Railway Co., 200 Ky. 105, 254 S.W. 202, 203, wherein it is said: ‘If, however, a street railway has provided a regular depot at a stopping place, the same duties are imposed upon it with reference to its safety for the discharge of passengers as are imposed upon other carriers of passengers. Where there is no such depot provided, and the stopping place is in the street, which is under the control of the city and not the street railway company, and where there exists no duty of the latter to keep the street in repair, the company is not liable for its being out of repair pair and thereby dangerous, unless it knew of the dangerous condition, or could have known it by the exercise of ordinary care, and failed to inform the passenger of the facts or to assist him in alighting.’

To the same effect is Kentucky Traction & Terminal Co. v. Soper, 215 Ky. 536, 286 S.W. 776, 778: ‘If * * * the conductor had known of any defect in the street at the point where the car stopped, had there been a defect, it would have been his duty to warn the alighting passenger of such defect, and, had he failed to do so, and an injury had resulted to the passenger in alighting as the direct result of such defect in the street, the street car company would have been required to respond in damages.’

In Durieu v. New Orleans Public Service, Inc., 7 La.App. 276, the court held that where the surface of a street was cracked and uneven, it was a question of fact as to whether the place where the street car stopped was unsafe.

The test applied in Wagner v. New Orleans Public Service, Inc., 9 La.App. 699, 120 S. 72, as to the safety of the place where the street car stopped is: ‘A railroad or street car company is responsible to a passenger for its failure to furnish a safe place to disembark or for stopping its car and allowing or inviting a passenger to disembark at an unsafe place.’

The rules above stated were applied in Caley v. Kansas City, Missouri & K. C. P. S. Co., 226 Mo.App. 934, 48 S.W.2d 25;Poehl v. Cincinnati Traction Co., 20 Ohio App. 148, 151 N.E. 806; and in Kennedy v. Fleming, 114 Kan. 853, 221 P. 249; and the cited cases are in accord with our decision in Quinn v. New York Life Ins. Co., 224 Mich. 641, 195 N.W. 427.

Nor is it a sufficient performance of the street car company's duty if the passenger reaches the surface of the street in safety, if a step or two will cause the passenger to encounter unsafe conditions. Spangler v. Saginaw Valley Traction Co., supra.

There was testimony that the street car stopped so that the door from which plaintiff alighted was three or four feet south of the hole in the pavement, which was about four inches wide, five inches deep and fifteen long. The same witness testified that he had noticed the hole in the pavement a week before the accident. Another witness testified that the hole was seven or eight inches deep and that she had seen the hole two or three weeks prior to the date of the accident. Plaintiff testified that many people got off the car at the same time that she did and that the safety zone was crowded. Other testimony substantiated this claim. Under this state of facts whether the defendant City of Detroit knew or should have known of the unsafe conditions in the safety zone, and whether it should therefore have warned the passenger, is a question of fact for the jury.

Defendant, City of Detroit, further contends that plaintiff was guilty of contributory negligence as a matter of law in not seeing the hole in the pavement. Under the facts in this case, especially the crowded condition of the safety zone, this issue presents a question of fact for the jury. We think it cannot be held as a matter of law that the instant case is one within the holdings that if the defect is as obvious to the injured person as to the carrier there can be no recovery. 1 Nellis on Street Railways, § 308; Whitmore v. Detroit United Railway, 185 Mich. 46, 151 N.W. 651. Under the facts, it is questionable whether the danger was obvious to the plaintiff and we cannot say that she was guilty of contributory negligence as a matter of law. The trial judge erred in directing a verdict in favor of the Ctiy of Detroit.

The remaining question is: Was the trial judge correct in directing a verdict in favor of the defendant City of Hamtramck on the ground that plaintiff failed to give proper notice? As noted, the accident happened November 13, 1936. On November 20, 1936, an attorney wrote a letter for plaintiff to the city notifying it of the accident. The city attorney replied, calling attention to the provisions of the city charter which required ‘claim in writing and under oath’ within 60 days after injury. On December 23, 1936, the same attorney for plaintiff wrote a more...