Maxson v. Bay Cnty., 49.
| Decision Date | 05 September 1939 |
| Docket Number | No. 49.,49. |
| Citation | 287 N.W. 389,290 Mich. 86 |
| Parties | MAXSON v. BAY COUNTY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Personal injury action by Mabel Maxson against Bay County, a municipal corporation. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
Appeal from Circuit Court, Bay County; James L. McCormick, Judge.
Argued before the Entire Bench.
Karl K. Leibrand, Pros. Atty., and Hubert J. Gaffney, both of Bay City, for appellant.
Oscar W. Baker, Jr., of Bay City, for appellee.
This suit for damages arises out of an automobile accident in which plaintiff, a passenger in an automobile operated by one Martin Knack, received severe injuries. The accident occurred in Bay County at the intersection of Portsmouth and DeCorte roads.
DeCorte road is a north and south, gravel surface, county road, terminating at the point where it intersects Portsmouth road at right angles. The gravel surface thereof is 12 feet in width, on each side of which is a shoulder and ditch, the distance between the gravel portion and the ditch being six feet.
Portsmouth road, at the point where DeCorte road terminates and intersects, has a gravel shoulder 19 feet in width, followed by the traveled portion which consists first of a strip of pavement nine and one half feet in width, supplemented by gravel of an equal width. Eight feet beyond the traveled portion of this road and 46 feet directly south of the terminus of DeCorte road, defendant erected and maintained posts which were intended to give warning to travelers approaching on the DeCorte road of the termination thereof. The warning arrangement consisted of three posts extending 32 inches above the ground, being painted black with a white band in the middle. Originally, the two end posts were separated by a space of 21 feet, with the third post being approximately half way between them. It was established that the end posts would be outside the traveled portion of the DeCorte road, if extended. South of the posts is a county drainage ditch, extending into the Portsmouth right of way and being twenty feet in width and seven feet deep, said ditch being bounded on the south by an open field. The posts were also intended as a barrier to prevent one from driving into the aforementioned ditch.
On November 7, 1936, the car in which plaintiff was a passenger traveled south on DeCorte road toward the intersection; the driver failed to turn either to the right or left, and the car was plunged into the drainage ditch, resulting in plaintiff's injuries.
The declaration, in alleging negligence, among other things sets forth a duty devolvingupon defendant to keep erected and maintained barriers and guards between the end of DeCorte road and the drainage ditch paralleling the southerly side of Portsmouth road to give warning to travelers approaching on the DeCorte road and to prevent them from running into said ditch. Then follows an allegation that defendant failed to perform this duty. Defendant's answer admitted the duty but claimed that it had been performed, and that the sole proximate cause of the accident was the negligence of plaintiff's driver.
In this court, defendant attempts to demonstrate that no duty...
To continue reading
Request your trial
-
O'Hare v. City of Detroit
...356 Mich. 45, 96 N.W.2d 164); and 7) failure to replace the center post to a safety barrier, which had been broken off (Maxson v. Bay County, 290 Mich. 86, 287 N.W. 389). We deal in the instant case with a street which had been accorded official priority and on which traffic moved with the ......
-
Donovan Const. Co. v. Michigan, Dept. of Treasury, Revenue Div.
...and thus failed to raise this issue below, it is now precluded from raising it for the first time on appeal. See Maxson v. Bay County, 290 Mich. 86, 89, 287 N.W. 389 (1939). At oral argument, the Department cited two recent cases, ASARCO, Inc. v. Idaho State Tax Comm., --- U.S. ----, 102 S.......
-
Schneider v. Linkfield
...claims not advanced in the trial court will not be considered for the first time on appeal has been upheld in Michigan. Maxson v. Bay County, 290 Mich. 86, 89, 287 N.W. 389 (1939); Village of St. Clair Shores v. Village of Grosse Pointe Woods, 319 Mich. 372, 375, 29 N.W.2d 860 (1947); Therr......
-
Walters v. Quality Biscuit Division of United Biscuit Co. of America, 45
...question it must be said that defendant is now precluded from raising it. Bek v. Zimmerman, 285 Mich. 224, 280 N.W. 741; Maxson v. Bay County, 290 Mich. 86, 287 N.W. 389. As before noted, plaintiff has filed a cross-appeal claiming that the trial court was in error in deducting from the acc......