Monyhan v. Detroit & S. Plank Road Co.

• Decision Date: 04 March 1902
• Citation: 89 N.W. 372,129 Mich. 549
• Parties: MONYHAN v. DETROIT & S. PLANK ROAD CO.
• Court: Michigan Supreme Court

89 N.W. 372

129 Mich. 549

MONYHAN v. DETROIT & S. PLANK ROAD CO.

Supreme Court of Michigan

March 4, 1902

Error to circuit court, Wayne county; Byron S. Waite, Judge.

Action by John Monyhan against the Detroit & Saline Plank Road Company for personal injuries resulting from the defective condition of defendant's road. From a judgment in favor of the plaintiff, the defendant brings error. Affirmed.

Hamilton Baluss, for appellant.

Edward M. Vining, for appellee.

MOORE J.

Plaintiff recovered damages claimed to have been sustained by the tipping over of a sleigh upon which the plaintiff was riding the team attached being driven by one Walter Carver, his employer. The sleigh was loaded with a log, of about 400 feet, board measure. His claim is that the north part of the traveled portion of the road was filled, and had been for several days, with snowdrifts, which the witnesses state to have been from 3 to 9 feet high, to avoid which it was necessary to drive so that the runners of the sleigh were driven upon the ties of an electric road, which ties projected into the roadway a foot or 18 inches, and were 6 or 8 inches above the level of the road,--the snow coming upon the edge of the ties; that the north runners of the sleigh dropped into a hole 10 or 12 inches deep, causing the sleigh to tip over. The plaintiff recovered a judgment for $100. The defendant has brought the case here by writ of error.

Upon the trial no testimony was offered by the defendant. In his charge to the jury, the court, among other things, after stating the claims of the respective parties, said: 'It was the duty of the defendant to keep this road in a reasonably safe condition for travel of vehicles in summer and in winter. They should have kept it reasonably safe. If the railroad company is there, I take it, it is a subsequent servitude upon the highway; and I think I ought to charge you, and I do charge you, that, if they are there, they are there by the consent of the plank road company, and the fact of their being there does not exonerate or relieve the plank road company in any way from its obligation to the public to keep the highway, and the beaten track thereof, which they have held out to be the driveway or roadway of their company, in a reasonably safe condition for vehicles to pass over, and vehicles and teams such as this was. So, if you find there was negligence upon the part of the defendant, and there was no negligence on the part of the plaintiff, or the one driving the horses that he acted in a reasonable and prudent way,--in such a way as a reasonably prudent man would act under all the circumstances,--then the plaintiff is entitled to a verdict.' The defendant presented several requests to charge, which the court declined to give. The substance of these requests is that if the accident would not have happened, except for the snow, or the...