Malloy v. Township of Walker
| Decision Date | 08 November 1889 |
| Citation | 77 Mich. 448,43 N.W. 1012 |
| Court | Michigan Supreme Court |
| Parties | MALLOY v. TOWNSHIP OF WALKER. |
Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.
Action by Neal Malloy, administrator of the estate of Walter S. Gee deceased, to recover of the township of Walker damages for the death of his intestate, resulting from certain alleged defects in the highway. Judgment for plaintiff. Defendant brings error.
J. C. Fitzgerald, (F. A. Stace, of counsel,) for appellant.
Blair, Kingsley & Kleinhaus, for appellee.
This action is brought by the plaintiff as administrator of the estate of Walter S. Gee, deceased, against defendant township, to recover damages on account of the death of Walter S. Gee, which the plaintiff alleges was caused by the wrongful negligence of the defendant to keep in good repair, and in a condition reasonably safe for travel, a certain highway in that township. Plaintiff on the trial in the court below, before a jury, had a verdict and judgment for $2,500. Defendant brings error.
Forty-nine errors are assigned. Ten of the assignments of error are based upon the ruling of the court in the admission and rejection of evidence during the trial. Twenty-two of such assignments of error are based upon the refusal of the court to give defendant's written requests to charge, and the balance of such assignments are based upon certain portions of the charge as given.
The circumstances under which Mr. Gee received his injuries are not much in dispute, and are stated very fully in the brief of counsel for defendant. It appears that a party of ladies and gentlemen, including plaintiff's intestate and the plaintiff, all residents of the city of Grand Rapids, had arranged to make a visit and spend the evening at the residence of Mr. A. J. Gill, which is situate in the township of Walker, about two and a half miles west of the city of Grand Rapids, on the south side of the highway called "Bridge-Street Road," running from the city westward to the Grand river, a distance of about 10 miles. Plaintiff's intestate, who was part owner of a livery stable, furnished the conveyance, team, and driver, for which he was paid by the party. The conveyance provided was a long carry-all on wheels of peculiar and unusual build, being more than 20 feet long, made without any reach, with a "goose-neck" forward supporting the driver's seat, and under which the fore-wheels turned. The seating room for passengers extended from behind the goose-neck, backward several feet beyond the hind axle, and it was entered from behind by a step; the seats running lengthwise, and being over 15 feet long. The vehicle was so constructed that when loaded the weight of the passengers rested almost entirely on the hind axle. The tread of the wagon was wider than usual, the wheels being nearly a foot further apart than in ordinary wagons. It was drawn by four horses, the pole being attached to the collars of the wheel-horses by pole-straps, no neck-yoke being used. The party arrived at Mr. Gill's house between 8 and 9 o'clock in the evening, and remained till about 1 o'clock in the morning of February 25, 1887, when they started to return in the same conveyance. There was 26 full-grown persons, including the driver, in the load, one of whom, the plaintiff, besides the driver, sat on the driver's seat. Two of these persons, plaintiff's intestate and Mr. Fred Clark, rode standing on the hind step and the remainder, 9 gentlemen and 13 ladies, in the seating room of the carry-all, the most of the ladies being in the forward part. The road at this time was covered with snow and ice. There had been several sunny days, and the snow had somewhat thawed in the day-time, but had frozen again at night. The conveyance was on wheels, though for some part of the way on this highway the sleighing was good, and sleighs were being generally used. A short distance from Mr. Gill's, on this road towards the city, over which the party started to return, was a valley between two hills. The road began to descend towards the east shortly after leaving Mr. Gill's gate, and continued to descend for about 12 to 15 rods, until it reached an embankment constructed across the valley from hill to hill, a distance of about 18 rods. This embankment was from 12 to 16 feet wide at the top, with sides sloping at a grade of about one foot perpendicularly to one and one-half feet horizontally, being at the point where the accident occurred from 9 to 10 feet high above the natural surface, and some 17 feet on the grade to the bottom of the embankment. It had no railings or barriers at the sides. The traveled track of highway passed over this embankment, and there was a well-defined traveled track, with tracks of teams and vehicles worn down into the snow and ice forming two parallel troughs, from 2 to 4 inches deep, with a cone or raised ridge between them, along about the middle of the embankments; the track on the hill approaching it not being so well defined, as teams in descending the hill had not followed any particular track until they came to the embankment. Near the top of the hill, near Mr. Gill's, there was a hollow place, which had been washed out by a thaw in the early part of the winter. This place had been marked by a stake, and Mr. Gill accompanied the party with a lantern to guide them by this hollow, which he did, the team keeping to the south side of the road as they went down the hill. The night was cold and frosty, and the road on the hill-side and across the embankment was icy and slippery. There was no moon, but it was not a dark night, being light enough for the driver to see the traveled track 10 or 15 rods ahead of his team. After the team passed the hollow place, Mr. Gill left them, and returned home, and the vehicle proceeded down the hill, the horses going at a pace between a trot and a walk, keeping to the south side of the road-way until they approached the bottom of the cutting, and the beginning of the embankment. At this point there was a water-break, being a slight elevation crossing the road to turn the water which might flow down through the cutting to the sides of the embankment. On approaching this, the team and vehicle being on the south side of the road, the driver undertook to bring them into the traveled track, so that both off wheels should be on the south side of the ridge or cone, above mentioned, and both near wheels should be on the north side of it, and for that purpose drove his team somewhat to the north, and then along the center of the traveled track. It appears that the fore wheels, in coming on to the embankment, took the traveled track as intended, but the hind wheels did not follow therein, and, going too far to the north, both of them got wholly on the north side of the cone, and thus failed to track with or follow the fore wheels. The wagon proceeded along, the team and fore wheels keeping the track, and the hind wheels keeping out of it, and getting further and further out towards the north edge of the bank. The driver, giving his attention to his horses, did not notice the hind part of the wagon. Mr. Gee, the deceased, and Mr. Fred Clark, standing on the hind steps, did not notice this condition until the wagon had passed some 12 rods from this water-break, when the hind part of the wagon had worked quite over to the north edge of the bank, the fore wheels remaining in the traveled track. Then a slight jolting was noticed, and deceased and Clark jumped to the ground, deceased putting his shoulder to the north side of the wagon, apparently endeavoring to push it back onto the roadway by his own strength. About this time the hind axle broke close to the off (or south) hind wheel, and the hind part of the wagon immediately slid side ways down the embankment, the horses being still in motion, and the driver knowing nothing of anything being wrong until the hind end of the wagon began to go down. The entire conveyance moved forward, from the place where the axle broke, about 40 feet, before stopping. The fore wheels and fore part of the wagon remained on the road-way, and the hind part slid around so that the rear was at the foot of the bank, some 17 feet from the top of the bank, the driver remaining on his seat until the horses were unhitched. None of the persons remaining in the wagon were injured. Mr. Gee, the deceased, being on the north side at the rear end of the wagon when it went over the edge, was thrown some distance down the bank, and in some manner received a blow on the head. At first he did not appear seriously hurt, and took an active part in unhitching the horses, and went back with a greater part of the party to Mr. Gill's house to obtain some other conveyance. Having obtained a sleigh at Mr. Gill's, and the offer of another at Mr. Edison's, about a quarter of a mile further west, Mr. Gee started with Edison to walk there and get it, another of the party accompanying him with a pair of horses. During this walk Mr. Gee complained of a severe pain in his head, where he had received a blow, and returned to Gill's
and laid down, and shortly after became unconscious, and died a few days thereafter from the effects of it.
The only ground upon which any attempt is made to hold the township liable is the alleged neglect to provide barriers or railings along the sides of the embankment in question. The court in instructing the jury stated that, to entitle the plaintiff to recover, he must prove, by a fair preponderance of evidence, (1) that the highway at the place where Walter S. Gee received the injuries which caused his death was not in good repair, and in a condition reasonably safe and fit for travel; (2) that the defendant had reasonable time and opportunity after said...
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