McEvoy v. City of Sault Ste. Marie

• Citation: 98 N.W. 1006,136 Mich. 172
• Court: Michigan Supreme Court
• Decision Date: 23 March 1904
• Parties: McEVOY v. CITY OF SAULT STE. MARIE.

98 N.W. 1006

136 Mich. 172

McEVOY v. CITY OF SAULT STE. MARIE.

Supreme Court of Michigan

March 23, 1904

Error to Circuit Court, Chippewa County; Joseph H. Steere, Judge.

Action by Bartholomew McEvoy against the city of Sault Ste. Marie. There was judgment for defendant, and plaintiff brings error. Reversed.

Grant J., dissenting.

John W. Shine, for appellant.

George B. Holden, for appellee.

CARPENTER J.

December 24, 1901, while plaintiff was driving on Elizabeth street, in said city, his cutter came in contact with certain stones therein, and plaintiff was thrown heavily to the ground and injured. These stones, amounting to two or three cords, were placed in the street about the middle of the preceding August by one Frank E. Swift, who was building a house at this point. During all this time they were left without a light or other guard to indicate their presence. The mayor of the city lived on an adjacent lot, and passed said stones daily. In the month of September the general superintendent of the streets of the city had observed the stones, and had directed the contractors to remove some obstructions on the sidewalk. An ordinance of the city gave the mayor or common council authority to permit the placing of building material in the street. There was no proof that express permission to place these stones where they were had ever been given under this ordinance. At the time the plaintiff was injured, one William H. King, who was riding with him, was driving the horse. Said King was in the habit of driving on Elizabeth street when the stones were first placed there, and had ceased to drive there on that account. He had not driven there afterwards until the time of the injury. At that time he supposed the stones had all been removed. From the time he ceased driving until the time of the injury he had passed the place daily, walking on the sidewalk, but had not observed the stones. Within 30 days after his injury, plaintiff served a notice upon the common council of said defendant, and on the 22d of February served a notice on defendant's comptroller. The trial court directed a verdict for defendant on the ground that it was not liable, under the statute, for failure to remove these stones. The principal question raised on this appeal relates to the correctness of this decision.

1. In considering this case, we are not embarrassed by the vexed question of constructive notice. There was actual notice of this obstruction to the superintendent of defendant's streets. This was notice to defendant. Dundas v. Lansing, 75 Mich. 499, 42 N.W 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457; Moore v Kenockee Township, 75 Mich. 332, 42 N.W. 944, 4 L. R. A 555. We are confronted with the question, not of the duty of the municipality to discover obstructions placed in its streets by a wrongdoer, but of the duty of the municipality to remove obstructions to travel after knowledge of their existence.

It is clear that, under the principles of the common law, defendant is not liable for plaintiff's injuries. See Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450. Is it liable under the statute? The first statute making municipalities liable for injuries to persons upon the highways was passed in 1879. See Pub. Acts 1879, p. 223, No. 244. That statute has been superseded by another (see Act No. 264, p. 345, Pub. Acts 1887), which governs this case. These two acts, viz., that of 1879 and that of 1887, so far as the language applicable to this case is concerned, are the same. If defendant is liable under the act of 1879, its liability under the act of 1887 is clear. I first propose, therefore, to consider the question of whether, under the act of 1879, a municipality is liable for such an injury as that received by plaintiff. Section 1 of the act (see How. Ann. St. � 1442) made municipalities liable for bodily injuries sustained 'by reason of neglect to keep public highways * * * in good repair, and in a condition reasonably safe and fit for travel.' Section 2 made municipalities liable for damages to property by reason of neglect 'to keep in repair any public highway,' and contained the provision that, 'in all actions brought under this act, it must be shown that the municipality had reasonable time and opportunity, after such highways * * * became unsafe or unfit for travel, to put the same in proper condition for use.' Section 4 made it the duty of municipalities 'to keep in good repair, so they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, sidewalks, crosswalks and culverts.' The title of the act was 'an act for the collection of damages sustained by reason of defective highways, streets, bridges, sidewalks, crosswalks and culverts.' This act was open to two constructions--one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. Detroit, 74 Mich. 458, 42 N.W. 50, this court deliberately adopted the first construction. The facts in that case were very similar to those in the case at bar, and were these: On the evening of April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to the used for building purposes. It had been there a month or more, during which time it had not been guarded, nor had signals of warning been placed upon it. There was no evidence, as was pointed out in the brief of defendant, that the defendant city permitted it to be placed in the street. The issue raised by these facts required the court to determine whether municipalities were responsible for negligent failure to remove obstructions placed in the streets by third persons, and this court deliberately determined that the statute created that obligation. Justice Campbell, who took part in that decision, wrote a vigorous dissenting opinion. If we follow that decision, it is decisive of the question now under consideration, and compels us to say that the learned trial judge erred in denying liability. Various reasons are urged why we should not follow that decision.

It is said that the decision was wrong. If this is true, which I cannot admit, it was certainly not an unreasonable construction of the statute. It did no more than give effect to the language of the first section, which gives a cause of action for bodily injuries resulting from neglect to keep a street 'in a condition reasonably safe and fit for public travel.' I cannot agree to the proposition that injuries resulting from obstructions which the municipality negligently permitted to remain in the streets is not one of the mischiefs intended to be remedied by this statute. It is true that in such a case the injured party has a doubtful remedy against the person primarily responsible for the obstruction. But when we consider the difficulty oftentimes of ascertaining who that person is, and his general lack of financial means, as doubtless the Legislature did, this is a remedy of very doubtful value. If the wrongdoer, instead of putting the obstruction in the street, had made an excavation therein, the liability of the municipality, after knowledge or notice, is clear. If the latter instance is within the mischief of the statute, why is not the former? The municipality is equally negligent in both cases, and in each case the party primarily responsible is an independent wrongdoer. Suppose the wrongdoer, in making the excavation in the street, had heaped the material up alongside. In that case the municipality would be responsible for permitting the excavation to remain, but would be under no legal obligation to remove the obstruction. If a pedestrian should encounter the obstruction and fall into the excavation, I do not know how, under the opposing theory, the case would be determined. Nor am I able to see that the construction of the statute in the Joslyn Case contended for in this opinion leads to injustice. The decision does not require a municipality to follow every person in its streets, and see that he does not leave an obstruction therein. It only requires it to remove the obstructions of which it has, in the language of the statute (section 3442, Comp. Laws 1897) knowledge or notice. The most that can be made of the objections against Joslyn v. Detroit is that the court there adopted the less reasonable of two opposing constructions of a statute. If this is true, which, except for the purpose of this opinion, I should not admit, it does not furnish a sufficient reason for overruling that case. Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it. I can see how injury may result from overruling Joslyn v. Detroit. We make the law uncertain to individuals and to municipalities who for 18 years have relied upon that decision. Can we expect those who follow us to have more respect for this decision that we evinced for that? Will litigants and members of the bar have confidence that this court, as at present or as hereafter constituted, will feel itself bound by this decision? This condition of uncertainty is an evil which works...