Mechay v. City of Detroit

• Decision Date: 30 November 1961
• Docket Number: No. 56,J,56
• Citation: 364 Mich. 576,111 N.W.2d 820
• Parties: Jemil MECHAY, Plaintiff and Appellant, v. CITY OF DETROIT, a Michigan municipal corporation, Defendant and Appellee. an. Term.
• Court: Michigan Supreme Court

Page 820

111 N.W.2d 820

364 Mich. 576

Jemil MECHAY, Plaintiff and Appellant, v. CITY OF DETROIT, a Michigan municipal corporation, Defendant

and Appellee.

No. 56, Jan. Term.

Supreme Court of Michigan.

Nov. 30, 1961.

Max M. Marston, Harold Helper, Detroit, for plaintiff and appellant.

Nathaniel H. Goldstick, Corp. Counsel, Alfred Sawaya, Andrew F. Valenti, Asst. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench.

SOURIS, Justice (for reversal and remand).

Plaintiff, under contract with defendant city of Detroit, was painting the top of a street light pole when the pole broke, throwing him to the ground. His amended declaration for damages was dismissed on motion and this appeal was taken to review that dismissal.

Plaintiff's amended declaration contains three counts. He alleged, in the first, common law negligence; in the second, breach of a statutory duty; and in the third, breach of the common law duty to maintain a safe place to work. No claims are made in this appeal by plaintiff with reference to dismissal of his first or third counts. However, he presents two questions, both of which apparently relate to count two. By one of his questions, he suggests that count two sounds in tort for maintenance of a nuisance as to which the defendant municipality is not immune from liability. We find it unnecessary to consider this question for the reason that count two is planted squarely upon defendant's statutory duty to maintain its public highways, streets, bridges, sidewalks, crosswalks and culverts in reasonable repair. C.L.1948, § 242.3 (Stat.Ann. § 9.593). Our review, therefore, will be limited to consideration of the applicability of the duty imposed by that statute to street light poles and the availability to plaintiff of the remedy provided by C.L.S.1956, § 242.1 (Stat.Ann. § 9.591) for breach of that statutory duty.

C.L.1948, § 242.3 (Stat.Ann. § 9.593) provides, in part:

'It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction * * *.'

In Rufner v. City of Traverse City, 296 Mich. 204, 295 N.W. 620 and Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97, 19 A.L.R.2d 33, we ruled that C.L.1948, § 242.3 (Stat.Ann. § 9.593), requires cities to maintain in reasonable repair electric street light poles as part of their duty to keep in reasonable repair streets, highways, sidewalks, etc. so that they shall be reasonably safe and convenient for public travel. The argument is made by defendant that whether or not street light poles are required to be maintained in repair by that statute, the duty to do so does not extend to anyone except travelers and, since at the time of injury plaintiff was not traveling upon the adjoining street, defendant's statutory duty did not extend to him.

We disagree. The reference to public travel contained in the statute quoted above is not a restriction upon the persons to whom the duty is owed but, rather, defines the standard by which the duty is measured: '* * * to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel * * *.'

This conclusion is supported by the provisions of C.L.S.1956, § 242.1 (Stat.Ann. § 9.591), which creates the cause of action for breach of the statutory duty:

'Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.'

Liability is imposed upon municipalities in favor of 'any person or persons' injured by reason of the municipality's breach of its statutory duty. We have not squarely held that the benefits of this section of the statute are limited only to travelers, nor do we see any ground upon which we should do so now. The opinion in Beaudin v. Bay City, 136 Mich. 333, 99 N.W. 285, reasonably may be construed to suggest that the statutory cause of action is limited only to travelers lawfully upon the street, because it refers to cases outside Michigan which had so construed somewhat similar statutes and because the Court determined that the child plaintiff was entitled to recover so long as he was not unlawfully using the street. To the extent that there is any inference in that case inconsistent with this opinion, it is expressly overruled.

Reversed and remanded. Costs to plaintiff.

BLACK, EDWARDS and KAVANAGH, JJ., concurred with SOURIS, J.

CARR, Justice.

The amended declaration filed by plaintiff in this cause averred that on the 21st of October, 1956, he was an employee of Crown Painting Co., a contractor engaged by defendant city to paint certain poles on public streets. While engaged in painting a pole, forming a part of the street lighting system, plaintiff was injured as the result of the pole breaking and throwing him to the ground. In consequence of injuries so sustained an action for damages was instituted in the circuit court of Wayne county against the City of Detroit.

Plaintiff's pleading, which contained three counts, charged negligence on the part of employees of defendant in the maintenance of the pole in question. The second count included an averment that defendant 'did maintain a nuisance in said highway.' It was the theory of plaintiff's counsel, urged in the trial court and in this Court as well, that the pole was in such a condition of deterioration that it constituted a nuisance on the basis of which he was entitled to recover damages against the city. It was further averred by plaintiff as the principal ground of his alleged cause of action that the city had breached the statutory duty to maintain its public streets and highways in a condition reasonably safe for public travel thereon, and that plaintiff was and is entitled to rely on the modification of the dectrine of governmental immunity as enacted by the legislature.

On behalf of defendant a motion was submitted to the court asking the dismissal of the case on the ground that under the declaration no basis for liability on the part of the city was alleged. The trial court granted such motion, holding that the alleged defective pole was maintained by the city in connection with the performance of a governmental function, and that inasmuch as plaintiff was not a traveler on the street he was not entitled to the benefit of the statutory provisions granting a right of action for failure to maintain a public street in a condition reasonably safe for travel thereon to one injured as a result of such failure. From the order of dismissal, entered pursuant to the opinion of the circuit judge, plaintiff has appealed.

On behalf of defendant it is contended that the amended declaration filed in the cause did not allege facts indicating the maintenance by the city of an actionable nuisance. The circuit judge obviously agreed with such contention, and properly so. Plaintiff did not claim in his pleading that there was any defect in the pole as originally installed, or in the manner of installation. Rather, as the averments of the declaration clearly indicate, it was the theory of his counsel that the defective condition of the pole was such as to constitute a menace to traffic, and that the employees of the defendant were negligent in not properly maintaining said pole and in failing to exercise precautions against damage or injury due to the alleged condition. The conclusion cannot be avoided that the gist of the claimed cause of action is negligence on the part of employees of the city.

This Court has recognized in a number of prior decisions that a distinction must be drawn between liability for a nuisance resulting from the direct act of a municipality in the construction of public works, or otherwise, and situations involving merely negligence on the part of employees. In Ferris v. Board of Education of Detroit, 122 Mich. 315, 81 N.W. 98, 99, the rule as to liability was summarized as follows:

'The trial court was of the opinion that the defendant, being a municipal corporation, could not be held liable for negligent injuries under the common law, and, there being no liability created by statute, the plaintiff could not recover. It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and be precipitated upon the plaintiff's premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion...