Kornetzski v. City of Detroit

• Decision Date: 23 December 1892
• Citation: 94 Mich. 341,53 N.W. 1106
• Court: Michigan Supreme Court
• Parties: KORNETZSKI v. CITY OF DETROIT et al.

53 N.W. 1106

94 Mich. 341

KORNETZSKI v. CITY OF DETROIT et al.

Supreme Court of Michigan

December 23, 1892

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Suit by Caroline Kornetzski against the city of Detroit and the Detroit City Railway Company to recover for the death of plaintiff's husband. Judgment for plaintiff against the city, on account of which the city brings error. Reversed.

John J. Speed, for appellant.

Sidney T. Miller, (John C Donnelly, of counsel,) for defendant Detroit City Railway. Haug & Yerkes, for appellee.

MCGRATH C.J.

Plaintiff's intestate, while driving upon Mack street, was thrown from his wagon, March 15, 1890, and killed. Mack street is unpaved, the roadbed is narrow, and the Detroit City Railway had laid its tracks in the center of the street during the previous summer, at which time the grade of the highway had been conformed to the grade of the railway tracks. It was but about eight or ten feet between the track and the ditches on either side of the highway. The highway outside of the track was in a very bad condition, due to an open winter, and the fact that the travel when upon the roadway was confined to narrow limits. To avoid that portion of the roadway outside of the track, the track bed was driven upon, and the wagon wheels would frequently drop outside of the rails, causing a succession of ruts just outside of the rails, and driving the earth away from the stringers upon which the rails were laid so that in some places the track was several inches higher than the rails. Plaintiff's intestate was picked up from the roadway, beside his wagon, in an unconscious condition and died within a few moments. His wagon was used for carrying furniture, and the driver's seat was quite high. Deceased had evidently been driving along in the street-car track, and one of the front wheels had left the track, and dropped into the rut, which was from six to twelve inches deep. The horse had evidently stopped as his driver fell, as the wheel was still in the rut when deceased was picked up. The accident occurred in the daytime, when the condition of the street and of the tracks, and the liability of the wagon wheels to leave the tracks and drop into one of these ruts were apparent. While the street-car track occupied the street, its primary purpose was not travel by the general public, but use by the street-railway company, and a person driving upon it must...