Moore v. Kenockee Tp.

• Decision Date: 21 June 1889
• Citation: 75 Mich. 332,42 N.W. 944
• Court: Michigan Supreme Court
• Parties: MOORE v. KENOCKEE TP.

42 N.W. 944

75 Mich. 332

MOORE v. KENOCKEE TP.

Supreme Court of Michigan

June 21, 1889

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Action for damages for Moses Moore against the township of Kenockee. Judgment on verdict for plaintiff, and defendant brings error.

LONG J.

This action is brought to recover damages to a traction-engine caused by breaking through a bridge on one of the highways in defendant township. The cause was tried before a jury, and plaintiff had verdict and judgment for $500. Defendant brings error. The injury to the engine occurred on August 11, 1886. The plaintiff on that day was passing over what is called "Benner Bridge" with the engine, when some of the stringers broke, and the engine fell to the creek, some six or seven feet below. It cost $43.25 to raise it out of the creek, and $142.25 to repair it. Testimony was also given tending to show that the engine received permanent injuries. This testimony was to the effect that the boilder had braces inside to strengthen it, and it could not be told by an examination whether or not these braces were broken, and that by reason of this uncertainty such a boiler and engine was worth much less after having sustained such a fall, even though no injury was apparent. There was also some evidence that the threshing-machine used with the engine was idle 16 days by reason of the accident, but this was not allowed as an element of damages by the court, and need not be discussed. Testimony was given on the trial tending to establish such facts and circumstances as that by the exercise of reasonable care and diligence the defendant township would have known of the defective condition of the bridge, regardless of whether it had knowledge or had been notified of such condition. After the jury had been sworn to try the cause, the defendant's counsel interposed the objection that act No. 264, Sess. Laws 1887, repeals the old law of 1879, which gave a right of action in this class of cases, without a saving clause, of actions then pending, and, inasmuch as this suit was not in judgment at the time of the repeal of the law, the right of action fell with the passage of the act of 1887. The injury to the engine occurred August 11, 1886. Suit was commenced November 19, 1886, and judgment entered in the cause June 8, 1888. The act of 1887 took effect June 22, 1887, and repealed the law of 1879. This was after the injury to the engine, and after the suit was commenced, but before the matter went into judgment in the court below. We think, however, that the case falls within the rulings of this court in Merkle v. Township of Bennington, 35 N.W. 846. In that case it was said: "The repealing statute substantially re-enacts 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 question came before this court again in Alexander v. City of Big Rapids, 38 N.W. 227, and again it was said: "The section of the statute under which the present suit was instituted was repealed by the act of 1887, but the latter is substantially a re-enactment of the former section. (How. St. � 1442, and Laws 1887, p. 345, � 1,) and when such is the case we have held such repeal does not affect a suit commenced under the first act," and citing Merkle v. Township of Bennington, supra.

It is contended, however, by counsel for defendants that the above cases had each passed into judgment in the court below before the act of 1887 went into effect, and that in the case of Alexander v. Big Rapids the action was brought under section 1 of the act of 1879, while in the present case the action is brought under the second section. Section 2 of the act of 1887 is substantially a re-enactment of section 2 of the act of 1879. The proviso of this section in the act of 1879 reads: "Provided, that in all actions brought under this act it must be shown that such township, village, city, or corporation has had reasonable time and opportunity, after such highways, street, cross-walk, or culvert became unsafe or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein;" while in section 2 of the act of 1887 it is provided that in all actions brought under this act it must be shown that such township, village, or city has had reasonable time and opportunity, after knowledge by or notice to such township, village, or city that such highways, streets, bridges, sidewalks, cross-walks, or culvert have become unsafe or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein after such knowledge or notice." The changes made in section 2 of the act do not in any manner change or affect the cause of action. Section 1 of this act, under which the action in Alexander v. Big Rapids, supra, was brought, provided for a recovery for personal injuries, while section 2 provides for a recovery for injuries to personal property. The fact that the matters involved in the present controversy had not passed into judgment at the time of the repeal of the act of 1879 does not affect the right of recovery herein. That part of section 2 which gave the right of action remains substantially unchanged in the act of 1887, except it is extended to injuries received on sidewalks, and the proviso in that section does not affect the right of action. There is no substantial difference between these two statutes, and evidently it was not the intent of the legislature by the act of 1887 to deprive any one of a right of action which existed under the former act. The counsel is also in error in supposing that the case of Alexander v. Big Rapids had gone to judgment at the time of the taking effect of the act of 1887. It was not then in judgment in the court below, but the ruling in that case in this court followed Merkle v. Bennington.

Some contention arises in the case upon the construction to be given to the proviso of section 2 of the act of 1887 defendant's counsel claiming that it was the intent of the legislature, in the change made in language between this and the proviso of section 2 of the act of 1879, that the township must have some actual knowledge of the defect, or there must be proof of notice to the officers of the township whose duty it is to repair that the bridge is in an unsafe condition for public travel; and counsel contends that there is no proof of these facts in this case, and that the trial court was in error in leaving the whole testimony to the jury, from which they were to determine whether the town had such knowledge or notice. It appeared upon the trial that this bridge was built in 1872, some 14 years before the injury to this engine, and that the stringers had never been moved or renewed, and that the class of timbers used for stringers, situated as they were, could not be expected to remain sound and fit for that purpose longer than six to eight years. A portion of the stringers were brought before the jury, and were found to be very rotten, and the highway commissioner admitted on the trial that they were unfit for use. The plaintiff had passed safely over this bridge with his engine a day or two before, saw new covering of plank upon it, and it appeared safe. The bridge had four stringers, about three feet apart, and was covered with plank over a space of about seventeen feet. All the stringers but one on the west side broke. The plaintiff, in passing over the bridge, put down two planks lengthwise of the bridge to run the wheels of the engine upon. These plank were sixteen feet in length, twelve inches wide, and two and one-half inches thick. The plaintiff also gave testimony in addition to the length of time these stringers had been used, and their rotten condition. That in 1885 one Anthony Shulter, who was using a traction-engine during that year, observed the rotten and defective condition of the bridge, and called upon John Ready, who was then commissioner of the town, and notified him of its defective condition, and he promised to look after it. It appeared that the commissioner was deceased at the time of the trial, and this portion of the testimony was taken from the jury, under the charge of the court. This witness also testified that in 1886 he notified George Brown, who was then commissioner of highways of the town, of the defective condition of the bridges in the township, and that he at this time told Brown that he had notified Mr. Ready the year before about the bridges in the town, and that they ought to be fixed. It also appeared that the attention of the overseer of highways of that road-district had been called to the condition of the bridge, and he had caused it to be replanked, but put in no new stringers. At the close of this testimony the defendant asked the court to charge the jury that the rule regarding liability for failure to inspect and examine roads, etc., as laid down by the supreme court in Stebbins v. Township of Keene, 55 Mich. 552, 22 N.W. 37, was under the old law, and is not applicable to a case under the statute of 1887. "The old law made the town liable, if it neglected after a reasonable time to repair, etc., (whether the town had notice or not,) but the present law requires proof of actual notice and actual knowledge of the defect, and then it must appear that a reasonable time had elapsed after such knowledge or such notice in which to make such repairs,...