Lynes v. St. Joseph County Road Commission

• Decision Date: 09 December 1970
• Docket Number: Docket No. 7170,No. 3,3
• Citation: 29 Mich.App. 51,185 N.W.2d 111
• Parties: H. Milton LYNES, Plaintiff-Appellant, v. ST. JOSEPH COUNTY ROAD COMMISSION, St. Joseph County, Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 111

185 N.W.2d 111

29 Mich.App. 51

H. Milton LYNES, Plaintiff-Appellant, v. ST. JOSEPH COUNTY ROAD COMMISSION, St. Joseph County Michigan, Defendant-Appellee.

Docket No. 7170.

Court of Appeals of Michigan, Division No. 3.

Dec. 9, 1970.

Released for Publication March 30, 1971.

Michael O'N. Barron, McKessy, James & McWhorter, Kalamazoo, for plaintiff-appellant.

John D. Doyle, Troff, Lilly, Bonow, Piatt & File, Kalamazoo, for defendant-appellee.

Before HOLBROOK, P.J., and BRONSON and BROWN, ^* JJ.

BRONSON, Judge.

The essential facts of the instant case, as recited in plaintiff's complaint, may be quickly stated: On September 25, 1967, at approxiamtely 11:05 p.m. plaintiff was driving his automobile in a northerly direction on Shimmel Road proceeding toward the intersection of Shimmel Road and Pucker Level Road in St. Joseph County, Michigan. A stop sign, located on the southeast corner of the intersection, controlled the flow of northbound traffic on Shimmel Road. This traffic control sign had been placed and authorized by the defendant road commission.

Plaintiff's vehicle proceeded into the intersection without stopping and yielding to traffic on Pucker Level Road. A collision ensued between plaintiff's vehicle and another vehicle which had been proceeding east on Pucker Level Road. Plaintiff claims that the accident and his injuries were caused by the negligence of the defendant in failing to properly maintain the stop sign. More specifically, the plaintiff asserts that his injuries were the proximate result of the defendant's negligent failure to maintain a stop sign so that it had adequate reflective qualities so as to give proper warning to motorists approaching said intersection; to place a warning sign ahead of the stop sign; to position the stop sign in a manner that would give adequate notice to northbound traffic on Shimmel Road; and to maintain the stop sign in a reasonable state of repair. Plaintiff's complaint further alleged that defendant had both actual and constructive notice of the unsafe conditions.

Defendant filed a motion for summary judgment pursuant to GCR 1963, 117, alleging that:

'The plaintiff has failed to state a claim upon which relief can be granted in that there is no legal liability imposed upon the defendant herein for the alleged acts of negligence as specified in plaintiff's complaint.'

The trial court, for the following reasons, granted the defendant's motion for a summary judgment:

'This case obviously turns on a construction of the '64 act which became effective on July of '65 which would control this case. ¹

'Actually, it seems to me what we have here is a question of what is 'the improved portion' of the road, under the statute that does by express terms repeal certain sections of the highway law and which repeals any others which are inconsistent by implication.'

'(The legislature has) limited liability in this area of highways to the traveled portion and I will have to grant the motion.'

The trial court, by equating 'the improved portion' with 'traveled portion' (pavement), construed the statute to provide the defendant with immunity from liability for injuries proximately caused by the defendant's negligence in the construction and maintenance of traffic control devices. In so construing the statute, the trial court erred.

The statute which specifically imposes liability upon the defendant for bodily injury resulting from its failure to keep the highways in a condition reasonably safe and fit for travel provides:

'Each governmental agency having jurisdiction over any highway Shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.' ² (Emphasis added.)

The trial court, at the time it granted the defendant's motion for a summary judgment, did not have the advantage of this Court's decision in Mullins v. Wayne County (1969), 16 Mich.App. 365, 168 N.W.2d 246 ³ where this Court stated the following with respect to the above-mentioned statute:

'The language of (M.C.L.A. § 691.1402 (Stat.Ann.1969 Rev. § 3.996(102))), applicable effective July 1, 1965, parallels the verbiage in force since 1885. The new language in the 1964 law stating that '(t)he duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel,' Does not lessen the duty of the road authority to keep the 'improved portion of the highway designed for vehicular travel' in 'reasonable repair, and in condition reasonably safe and fit for travel." ⁴ (Emphasis added.)

Thus, in addition to incorporating by reference M.C.L.A. § 224.21 (Stat.Ann.1958 Rev. § 9.121), the legislature in enacting M.C.L.A. § 691.1402 (Stat.Ann.1969 Rev. § 3.996(102)) retained the requirement contained in former statutes which imposed upon the county road commission the duty to keep the highways 'in reasonable repair and in a condition reasonably safe and fit for travel.' Construing the section of a former statute which imposed the same duty upon the road commission, the Supreme Court in O'Hare v. City of Detroit (1960), 362 Mich. 19, 23, 26, 106 N.W.2d 538, 540, stated:

'We cannot agree with the trial judge that 'failure of a city to maintain a stop sign does not come under this heading' of 'failure to maintain public highways and streets in reasonable repair."

'Dealing in a case of first impression with the Michigan statute imposing specific liability for injuries resulting from municipal failure to maintain its streets in a condition reasonably safe and fit for travel, We hold that maintenance of a stop sign, once erected, is part of that statutory liability.' (Emphasis added.)

This Court in its recent decision in Mullins v. Wayne County, Supra, pp. 380, 381, 168 N.W.2d p. 253, stated the following with respect to the O'Hare decision:

'The argument in O'Hare v. City of Detroit (1960), 362 Mich. 19, 23, 106 N.W.2d 538, that the case there before the Court was a particularly strong one because the missing stop sign had once been erected Does not constitute a holding that signs need never be erected in the first instance as part of the duty to keep the road reasonably safe.' (Emphasis added.)

In the instant case a stop sign had been placed by the proper authorities for the purpose of controlling the flow of traffic. The defendant had the duty, imposed by statute, to place and maintain the stop sign in a manner to make travel upon the highways reasonably safe. O'Hare v. City of Detroit, Supra; Mullins v. Wayne County, Supra. See Malloy v. Township of Walker (1889), 77 Mich. 448, 43 N.W. 1012; Joslyn v. City of Detroit (1889), 74 Mich. 458, 42 N.W. 50.

We are not prepared to say that the action or inaction of the defendant in the instant case constituted negligence which proximately caused the accident. This issue is not before the Court. We merely hold that the defendant has a statutory duty to maintain the highways under its jurisdiction in a condition 'reasonably safe and fit for travel.' The installation and maintenance of a traffic control device is included within the scope of this duty. Until the evidence of the plaintiff is heard, the Court cannot properly determine whether sufficient evidence relating to causal negligence and breach of the duty was introduced to make a question for the jury on the pleaded issues of defendant's negligence. Mullins v. Wayne County, Supra, p. 378, 168 N.W.2d 246.

The argument presented by the defendant, and accepted by the trial court as the basis for granting the defendant a summary judgment, that M.C.L.A. § 691.1402 (Stat.Ann.1969 Rev. § 3.996(102)) exempts the defendant from liability in the instant case because the stop sign is not part of the 'improved portion of the highway designed for vehicular travel' is not persuasive. Under defendant's interpretation of the statute, the duty of the defendant to keep the highways safe and fit for travel would be limited to the pavement itself and whatever equipment physically touches the pavement. Although this interpretation would provide a certain ease in the application of the statute, it would completely negate the first part of the statute, as well as that part of M.C.L.A. § 224.21 (Stat.Ann.1958 Rev. § 9.121), both of which impose the duty on the defendant to keep the highways safe and fit for travel. We cannot accept the argument that the legislature intended such a result. It is recognized law that in construing a statute effect...