Lay v. City of Adrian

• Decision Date: 28 June 1889
• Citation: 42 N.W. 959,75 Mich. 438
• Court: Michigan Supreme Court
• Parties: LAY v. CITY OF ADRIAN.

42 N.W. 959

75 Mich. 438

LAY v. CITY OF ADRIAN.

Supreme Court of Michigan

June 28, 1889

Error to circuit court, Lenawee county; LANE, Judge.

SHERWOOD C.J.

The plaintiff brings this suit against the city for personal injuries received while passing over a bridge therein, which it is alleged the city negligently allowed to be out of repair, and in consequence of which he sustained great damage. The cause was tried before a jury, and the plaintiff recovered $2,800. The defendant brings error, and assigns 18 errors in the proceeding by which the judgment was obtained. From the record it appears the bridge upon which the injury was received was a small wooden structure, and at the time the accident occurred the plaintiff was driving over the same upon a walk; that some of the planks used for a covering had become loosened, and that while crossing plaintiff's horse stepped upon one of them, which did not reach across the bridge, and, the end of the plank not reaching the stringer, it was thrown up with great violence, when stepped upon by the horse, striking the plaintiff in the back of the head, and knocked him off his wagon, his face striking upon the bridge as he fell, seriously injuring him; and the testimony tends to show that for some time he was unconscious, and that he has been unable to labor since, and that it is doubtful whether he will ever recover from his injuries. But little question was made upon the trial at the circuit as to the injury received by the plaintiff, or how it occurred, but the defendant contended that if the bridge was out of repair, as claimed by plaintiff, prior to the accident, the defendant had no knowledge or notice of such fact in time to repair it. The defendant also claimed the injuries received by plaintiff were of temporary character, and not permanent, and that if he had any claim therefor it should have been presented to the city council for payment before bringing suit therefor. The injury occurred on the 5th day of July, 1887, and it was claimed on the part of the plaintiff that the city was notified of the defective and unsafe condition of the bridge the latter part of June, and that the plank on the same were loose and dangerous. It appears the stringers were but two or two and one-half inches thick, upon which the ends of the short plank rested, and at those places the stringers were decayed and crumbling. It appears from the testimony of Mr. Kent, the city's deputy-surveyor, that on the 13th day of June previous to the accident he made an examination of the bridge, and saw its condition, and further testified that he saw no loose planks upon the bridge, and that he saw no indications of decay of the stringers, but was not near enough to them to detect it if it had existed; that he made such examination at the request of the chairman of the street committee of the city. At the close of the trial, and at the request of the defendant's counsel, and the court submitted to the jury the following special request "Was Railroad-Street bridge in a condition reasonably safe for public travel on June 13, 1887, the date of Mr Kent's examination?" and the jury answered the question in the negative. W. D. James, one of the plaintiff's witnesses, also testified that he informed Mr. Lawrence, (who was one of the aldermen of the city, and chairman of the committee on streets and bridges,) the latter part of June, that the planks on the bridge in question were loose, and tipped up when teams were crossing, and that it was unsafe, and that Mr. Lawrence replied that he would attend to it. Mr. Burger was called for plaintiff, and testified that he was on the bridge the day of the accident, and before the plaintiff left the bridge, and walked over the bridge and examined it some, and was asked by counsel for the plaintiff, "What was the condition of the stringers of the bridge?" Witness answered: "We crossed the bridge, and we noticed there were, I think, a number of planks that were loose on the bridge, and some of the stringers appeared to be rotten." We see no error in the admission of this testimony. The condition of the bridge was in issue, and it was a part of the contention of plaintiff that not only were there three or four short planks loose, but that the stringers were rotten. It was also rebutting the testimony of the defendant showing that the stringers were not decayed. Dr. Stevenson was called as a witness for the plaintiff, and after testifying as to the nature and character of the injury and as to the prospect of full recovery therefrom was cross-examined by Mr. Helme, the prosecuting attorney, and, among others, he was asked the following question: "Would you be willing to state upon an examination of Mr. Lay, not having seen him before, that he was unable to do labor?" The doctor answered "Yes, sir; but I have examined him also." He was...