Rogers v. Village of Orion

• Decision Date: 15 March 1898
• Citation: 74 N.W. 463,116 Mich. 324
• Court: Michigan Supreme Court
• Parties: ROGERS v. VILLAGE OF ORION.

74 N.W. 463

116 Mich. 324

ROGERS v. VILLAGE OF ORION.

Supreme Court of Michigan

March 15, 1898

Error to circuit court, Oakland county; George W. Smith, Judge.

Action by Jennie Rogers against the village of Orion to recover for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error. Reversed.

A. & S. H. Perry, for appellant.

Joseph H. Holman (Fred A. Baker, of counsel), for appellee.

GRANT C.J.

Plaintiff recovered verdict and judgment for damages claimed to have been received on account of a defective sidewalk.

1. In order to show notice on the part of the defendant, plaintiff introduced one Russell, who testified that, before the accident to plaintiff, he also had fallen over a loose plank and was afterwards shown the plank where plaintiff fell, and that it was at the same place. He testified that, the next morning after he fell, he went to one Kessel, who was a member of the street committee. His testimony on direct examination is as follows: "I notified him the morning of the 27th. It was in the evening that I fell, but I didn't see him until the next morning. I knew he kept the books there. He was always there when the council board met. I went there for the purpose of notifying him. I told him,-I explained to him that I had fell, and come near breaking my neck; and, of course, I didn't use the bad words I used when I fell, but I told him that if my wife ever passed over that sidewalk, and she would get hurt over it, that I would make somebody pay dear for it. He didn't say anything at all to me in reply." On cross-examination he testified "I told him that if my wife should fall, that I would make somebody pay dear for it. That's what I told him right there, sir. That's the question asked between me and him and I. That was all the conversation there was. The substance of what I said was: 'Mr. Kessel, there is a loose plank up here, and, if my wife should fall over that why, I would make the city pay dear for it."' He also testified he did not know the name of a single street in the village. This testimony was left to the jury as evidence of notice. Mr. Kessel positively denied any such conversation. The judge instructed the jury that, if the testimony of Russell were true, this was notice to the village. There is nothing in the testimony of the witness Russell to show that he notified Kessel where the loose plank was. If Russell had testified that he told Kessel what the defect was, and the spot where it was, and it was the same one that caused plaintiff's injury, there would have been no error in the charge.

2. The court erred in directing the jury that plaintiff could recover...