Lombar v. Village of East Tawas

• Decision Date: 08 May 1891
• Court: Michigan Supreme Court
• Parties: LOMBAR v. VILLAGE OF EAST TAWAS.

48 N.W. 947

86 Mich. 14

LOMBAR v. VILLAGE OF EAST TAWAS.

Supreme Court of Michigan

May 8, 1891

Error to circuit court, Iosco county.

Robert Horenden, (Shepard &amp Lyon, of counsel,) for appellant.

Geer & Williams, for appellee.

MCGRATH J

Plaintiff recovered damages for injuries occasioned by a defective sidewalk, and defendant appeals. Defendant was incorporated by an act of the legislature, approved February 18, 1887, and the first election of officers was had on the second Monday of April, 1887. The first tax-roll after the organization of the village was delivered into the hands of the collector in August, 1887. The plaintiff was injured June 8, 1888. The street had been a public highway for upwards of 10 years, and the sidewalk in question had been built for upwards of 6 years, but whether by the township authorities or by the abutting owner does not appear. The accident occurred in the evening, after dark. Nine errors are assigned, the first four of which relate to the admission of testimony regarding the removal of the defective plank which caused plaintiff's fall and the putting of another in its place. All of the witnesses testified that the accident occurred on the west side of Van Valkenburg street, between the two trees in front of the residence of one Sawyer; and that there was but this one hole or defect in the walk, which had been there from one to six months. Plaintiff had located the place of the accident, and pointed it out to her sister, who testified that plaintiff had on the next evening after the accident pointed it out to witness; that witness visited the place a second time with one Edsall, to get the plank, and she and Edsall carried it away; that it had been taken out, and they found it beside the walk. The following colloquy then took place: "Question. I ask you, the second time you was there, in what condition did you find the walk as compared with the first time, at this particular place? (Objected to by defendant as incompetent and immaterial.) By the Court. Do you propose to show that this is the identical place? By Mr. Geer. I do. The Court. She can state it, with the understanding that you show that place the identical place. It comes in with that understanding. Whereupon the defendant's counsel excepted to the ruling of the court and the witness answered: The second time I was there the walk was fixed. They had torn up the walk, and removed this plank, and put another in its place. Whereupon the attorney for the defendant said: I move that the answer of the witness be stricken out, as incompetent and immaterial. By the Court. It is permitted to stand, with the understanding that it shall be shown to be the identical place and spot where the injury was received. Mr. Geer. I only show it and it is only admitted upon the theory for the purpose of identifying this particular place, and the plank that came out of it. That is the object, and we don't do it for the purpose of showing negligence on the part of the defendant at all. Question. At the second time you was there, where was this board that you saw the first time you was there, with the hole in it? Answer. It was lying by the side of a pile of other boards. Mr. Shepard. I move that the testimony in relation to the location of the board be stricken out as incompetent. The Court. It is received, with the understanding that it be shown to be the identical board that had the hole in it. Defendant's counsel excepted." The plank was then produced in court, and identified by the witness. Edsall testified that within a day or two after the accident he went with the last witness to the place where the accident was said to have occurred, and, after describing the place, he testifies as follows: "Question. After a time, did you observe that the plank had been removed, and another put in its place? (Objected to by defendant's counsel as incompetent and immaterial.) Mr. Geer. We offer it only for the purpose of fixing the time and place. Mr. Shepard. The purpose of it is to get it before the jury, and use it in a manner that is incompetent. The Court. It is admitted for the purpose stated. (Defendant's counsel excepted.) Question. Did you observe it after it had been removed? Answer. Yes, sir. May Lombar and I took the plank away the next day after it was removed from the sidewalk." No testimony was offered tending to show who removed the defective plank, or who put the new plank in its place. The testimony as to the repair of the sidewalk did not tend to show either knowledge or negligence on the part of the village prior to the accident, for the fact of repair did not fix the time for which the defect existed. It did not tend to show defendant's recognition of the defect, for it was not shown that defendant made the repairs.

It has been held that the fact that repairs have been made by a municipality is a circumstance which, in connection with other circumstances, might properly be considered by the jury as tending to show that the walk removed was defective; but I cannot approve of this doctrine. Municipalities are not required to keep their sidewalks in a perfect condition. They are liable only where not reasonably safe. No liability attaches because of latent defects unless the structure is of such a character that a failure to examine would in itself be negligence. The defect must be such as to suggest unsafety. The very step which results in injury may first disclose the unsafe condition. A slight elevation of one plank above another may not suggest danger. It may be reasonaly safe, yet it may cause an accident; and the accident may suggest the precaution of repair. To permit the fact of the precaution taken after the accident to be used as evidence of the existence of such a defect at the time of the accident as would make the municipality liable would be unjust. The plaintiff, in this class of cases, should be required to show the nature of the defect at the time of and before the accident. When this is done, and liability is disclosed, it is unnecessary to go further. When it is not done it is error to predicate the existence of an actionable defect upon the fact of repair. In Iron & Engine Works v. Kimball Tp., 52 Mich. 146-149, 17 N.W. 733, Justice CAMPBELL says: "The court admitted full testimony concerning the exact condition of the bridge at the time of and after the accident. Among this proof was testimony showing that chains and other appliances were fixed upon various parts of the bridge. Plaintiff then proposed to ask witness why these chains were used, but this was held irrelevant. This ruling was correct. The fact that after the accident precautions were taken does not indicate that any knowledge of the propriety of such precautions was had before the accident. Proof was not excluded of the real condition of the bridge and the jury had means of understanding that and all its appearances." It was entirely proper to produce and identify the plank in question, and to show that it was taken from the walk at the place where the plaintiff claimed to be injured. Reference to the repair of the walk was perhaps inseparable from the proofs necessary to the identification of the plank, and to account for its presence at the side of the walk where it was found; but the attention of the witnesses was specially directed to the repair, and this, we think, was improper. In this instance, however, there was abundant proof of the prior existence of the defect in the...