Rivard v. Bay City

• Decision Date: 15 April 1937
• Docket Number: No. 24.,24.
• Citation: 279 Mich. 317,272 N.W. 690
• Parties: RIVARD v. BAY CITY.
• Court: Michigan Supreme Court

279 Mich. 317

272 N.W. 690

RIVARD

v.BAY CITY.

No. 24.

Supreme Court of Michigan.

April 15, 1937.

Action by Charles A. Rivard against the City of Bay City. Judgment for plaintiff, and defendant appeals.

Judgment reversed without a new trial.

Appeal from Circuit Court, Bay County; Louis C. Cramton, Judge.

Argued before the Entire Bench.

Albert W. Black, City Atty., of Bay City, for appellant.

William L. Hellerman, of Bay City, for appellee.

NORTH, Justice.

Plaintiff, alleging he sustained a personal injury in a fall caused by defendant's negligence in failing to keep its sidewalks reasonably fit and safe for public use, brought this suit for damages. The circuit judge heard the case without a jury and rendered judgment for plaintiff in the sum of $914.53. Defendant has appealed.

No witnesses were sworn in behalf of defendant. At the conclusion of the proofs, defendant moved for judgment in its favor. This motion was denied. After judgment defendant made a motion for a new trial and this was also denied. The principal matter presented for review is defendant's contention that on this record it is entitled to judgment. The only negligence charged is that defendant city failed to keep its sidewalk at the place of accident in reasonable repair so that it was ‘reasonably safe and convenient for public travel.’ 1 Comp.Laws 1929, § 4225.

The accident happened between 8:30 and 9 o'clock in the evening, but the testimony is all to the effect that in the immediate vicinity of the accident the walk was amply lighted. There were no unusual weather conditions or distracting circumstances which contributed to or attended the accident. Plaintiff was walking in a northerly direction along the sidewalk on the easterly side of the street. His small dog, which was going along slightly ahead of plaintiff, started toward the pavement at plaintiff's left as if to cross the street. The distance from the walk to the curb was eight or ten feet. Plaintiff called to his dog, stepped to the westerly edge of the walk, fell and injured one of his ankles. As to the condition of the walk at the point of accident, plaintiff testified: ‘I stepped with my left foot, I stepped right in where the walk was broken out on the edge of the walk and turned my ankle over. * * * I had been by there, oh, several times. I didn't know that the walk was broken or any holes in it or anything of that nature until after I hurt myself. * * * The condition of that sidewalk at the point where I fell was very bad. Some of the blocks of cement were up and some were down, * * * and it was broken off from the edge, I should judge four or five inches, where I hurt my foot. * * * I could not see how much was broken off the edge of the walk. Some places the walk was high and some places it was low and some of the stones were sagging and some stuck up. At the point where my foot touched it, I don't know, it might have been two inches and it might have been four inches. I don't know positively. I have never measured it.’

Plaintiff produced four other witnesses who were nearby at the time of the accident. We quote the testimony of each in so far as it bears upon the condition of the walk.

James MacNicol testified: ‘I noticed the sidewalk in front of the hamburg stand (opposite which the accident happened). It was in pretty bad condition. In some places it was lower than others, say an inch or two inches lower; and it was broken up and cracked. * * * the west side of that sidewalk opposite the hamburg stand was cracked up in some places along the edge of the walk as you went on the sidewalk.’

Another witness, Harley Madden, testified: ‘I remember seeing the sidewalk out there that night when the man was hurt, where he showed me. The sidewalk in front of the stand was cracked up. The west edge of the sidewalk in front of the hamburg place was cracked up. I don't know whether there was any holes in it but it was cracked in some places right around where he said he fell.’

Merlin R. Willette testified: ‘He (plaintiff) showed me where he hurt himself. I don't remember the condition of this sidewalk at that time. I did not happen to notice it at the time of the accident. I didn't pay any attention to it. * * * I understood Mr. Rivard fell at the north end of the hamburg shop on the west side of the sidewalk, and the sidewalk at that time and at that point was pretty well broken up.’

Another of plaintiff's witnesses, James Raeck, testified: ‘I remember the accident to Mr. Rivard and his getting hurt in front of the hamburg place. * * * I didn't pay any attention to the sidewalk in front of the north end of this hamburg stand on the west side that night.’

Another of plaintiff's witnesses, Patrick Neering, testified as to the general condition of the walk at the north side of the lot on which the...