Merkle v. Township of Bennington

• Citation: 35 N.W. 846,68 Mich. 133
• Court: Supreme Court of Michigan
• Decision Date: 12 January 1888
• Parties: MERKLE v. TOWNSHIP OF BENNINGTON.

35 N.W. 846

68 Mich. 133

MERKLE v. TOWNSHIP OF BENNINGTON.

Supreme Court of Michigan

January 12, 1888

Error to circuit court, Shiawassee county; WILLIAM NEWTON, Judge.

Action for damages, brought by Augusta Merkle, as administratrix etc., against the township of Bennington, under section 1442 How.St., declaring the liability of a township for damages to persons by reason of defective bridges. Verdict and judgment for plaintiff. Defendant brings error.

S.F. Smith, (Isaac Marston, of counsel,) for appellant.

G.R Lyon and Hugh McCurdy, for appellee.

CHAMPLIN, J.

When this case was heard, the court called attention of counsel to the repeal of the statute, contained in act No. 264 Sess.Laws 1887, under which the action in this case was planted. The repeal is in express terms, and without any saving clause. Supplemental briefs have been furnished us upon this point. The repealing statute, however, substantially reenacts the law repealed, with some slight modifications so as to include in the remedy afforded by its provisions damages for injuries received in consequence of the negligence of municipal corporations to keep sidewalks in repair, and to abolish the common-law liability to actions for negligence against such corporations. Upon consideration of the matter, we have concluded that the plaintiff's right of action is not affected by the act of 1887.

The injury for which the plaintiff seeks a recovery occurred July 5, 1881. The declaration contains two counts. The first alleges that a bridge had been constructed across Maple river, of timber and planks, laid upon stringers, in the usual manner of building bridges, and was built by the township for the purpose of being used as a bridge by the public traveling along the highway; that it was the duty of defendant to keep the highway and bridge in good repair, and in a safe and convenient condition for public travel at all times; that it did not keep the bridge in good repair, but suffered the same to become dangerous, and unfit for public use and travel, "said planks being loose, never having been fastened to said stringers, and the stringers uneven, so that said planks became loose, and were liable to slip off of said stringers, turn over, and tip up, and trip horses, and make them stumble, and obstruct wagons and vehicles when passing over said bridge; and said planks did slip off, the stringers became displaced, and did tip up, and trip horses, and obstruct wagons and vehicles while passing over said bridge." The declaration then charges that while George Merkle was driving over this bridge in a careful and prudent manner, and without fault on his part, "the said horses which he was driving became entangled in the loose planks of said bridge, and thereby tripped, stumbled, and became frightened and unmanageable, and ran away, and threw said George Merkle out of the wagon." The second count charges that the bridge was dangerous, and unfit for public travel and use, "the planks on the bridge loose, and were liable to slip off the stringers, topple, and tip up, and trip horses and obstruct wagons, and said planks did topple, slip off the stringers, become displaced, and did tip up and trip horses, and obstruct wagons in crossing said bridge;" that as said George Merkle was riding in his wagon, and driving his wagon and horses over said bridge, in a careful and prudent manner, and without fault, his horses became entangled in the loose planks of said bridge, and thereby tripped, stumbled, and became frightened and unmanageable, and ran away, thereby throwing said George Merkle out of his wagon upon a pile of stones, by said public highway, whereby he was injured so that he died. The defense was the general issue. The cause was tried before a jury, who gave a verdict for the plaintiff.

The defendant submitted four special questions to the jury, which, with their answers thereto, were as follows: "(1) Did Mr. Fisher, as overseer of highways in the district where this bridge was situated, repair the same in a proper manner, between the twentieth and thirtieth day of June, 1881? Answer. No. (2) Was the fact that one of Mr. Merkle's horses stepped into a hole in the bridge, as testified to by Anna Merkle, the direct cause of the injury? A. Yes. (3) Did Mr. Merkle see this hole on his way to Owosso that morning, and consider it dangerous? A. Yes. (4) Could Mr. Merkle, on his way back, by the use of ordinary care in driving on the east side of the bridge, have passed over the same with safety? A. No." Anna Markle, referred to in the second special question, is the daughter of George Merkle, who was injured by the accident, and is the only living witness who was present when it occurred. She testified respecting it as follows:

"We were coming from Owosso; we drove over the bridge to this plank, and one of the horses got scared, acted as though he got caught in the plank, and gave an awful jerk, and I heard something break, and something fall onto the bridge. The wagon run on the west side, down this bank, and threw my father out onto a pile of stones, and I jumped out, and the horses got away. Question. Did you see, then, anything in relation to the situation of the planks on the bridge? Answer. Yes, sir. Q. When the horses went upon them, how were they as to rattling? A. They rattled. Q. As the horses walked over them, they rattled as they walked? A. Yes, sir. Q. Now, you stated to the jury that when they came to this plank--What do you mean by that? A. That was the plank where the horse acted as though he got caught. I turned around to see what was the matter, and the plank--it was slipped out from the west end of the bridge, west side rather, and it left a hole, and it looked as though it was cut cornerwise, angling of the board; it looked as though it was slipped back over the other one. Q. That was where the difficulty occurred? A. Yes, sir; that was the difficulty in the bridge; yes, sir. Q. Where the difficulty occurred with the horse? A. Yes, sir. Q. How did the horse jump, suddenly? A. Yes, sir; he acted as though he got caught pretty tight. Q. What did your father do then; when the horse jumped, what did he do? A. He looked over the dash-board to see what was the matter. He didn't say anything. Q. What did he do with reference to trying to hold them? A. He had hold of the lines and pulled them back with all his might, but it seems as though he could not manage them. Q. State to the jury just how the horses acted there? Did they at once jump into a run? A. No, sir; the off horse, that is the horse on the west side, gave an awful jerk as though he was caught, and then they tried to get away from the wagon; they jerked and pulled, but didn't get away from the wagon on the bridge. Q. As you recollect it, when did the horses finally get loose from the wagon? A. After they had gone down the bank and threw my father out. I jumped out. I fell. As I got up, the first thing I saw was the horses just turning, I guess it is what you call the turnpike."

On her cross-examination, she testified that on the way going to Owosso with her father, in the morning, she did not notice anything on approaching the bridge; that she did while crossing; that her father said there might be an accident happen there some time. He was looking to the west side of the bridge. It attracted her attention, and she saw there was a plank bowing upon the west end. "Question. Was it a plank bowing up or was there a hole? Answer. I didn't notice a hole. I didn't notice at that time. I noticed the plank being bowed up. Q. Didn't your father make the remark there was a hole there, and somebody might get injured? A. No, sir; he simply said there might an accident happen there some time."

The witness was then cross-examined as to the testimony given upon a former trial of the case, from which it appeared that she testified that, when going north with her father towards Owosso, that morning, she observed a broken plank, that was loose, between the south end and middle of the bridge, on the west side, which was the place where the plank flew up when they came back; that it was broken from the corner crosswise; there was a piece broken angling off the end, and there was a hole there. "Question. Which side of the bridge did your father drive upon, on his way back, the east or west side? Answer. I don't know; I guess he drove through the center of the bridge. Q. Don't you remember he drove on the west side, so the horse got his foot caught in that hole, the hole being on the west side? A. This hole was on the west side. Q. He drove on the west side, so the horse put his foot in that hole? A. No, sir, you are mistaken; I didn't say that. Q. Where did he put his foot and get caught? A. I don't know. Q. It was at this same plank where there was a hole and it broken, was it not? A. I didn't say he put his foot in that hole on the west side of the bridge. Q. It was that same plank where he got caught? A. Yes, sir. Q. There was not anything else that you observed but the hole that he could get caught in? A. No, sir; I couldn't see anything else. Q. So that defect, or that hole, at that particular place was the only thing you noticed on the bridge, and that being the place where the horse made this jump? A. That is what I saw when looking back. Q. You didn't notice any other place? A. No, sir."

Further extracts were read in evidence to the jury from the testimony given on a former trial, in which she stated that the "horse got his foot caught in that hole." And the attorney for the plaintiff also read from the stenographer's minutes of the testimony of the witness given upon such former trial, to show that the witness stated that she did not see the horse's feet caught, but that she knew he got caught by his...