Ross v. Ionia Tp.

• Decision Date: 12 March 1895
• Citation: 104 Mich. 320,62 N.W. 401
• Court: Michigan Supreme Court
• Parties: ROSS v. IONIA TP.

62 N.W. 401

104 Mich. 320

ROSS v. IONIA TP.

Supreme Court of Michigan

March 12, 1895

Error to circuit court, Ionia county; Peter F. Dodds, Judge.

Action by Frederica Ross against the township of Ionia. From a judgment for defendant, plaintiff brings error. Reversed.

John H. Mitchell and Geo. E. & M. A. Nichols, for appellant.

F. C Miller (Vernon H. Smith, of counsel), for appellee.

MONTGOMERY J.

This is an action for an injury occasioned to plaintiff by reason of an alleged defect in a highway. A dam was built across the flats east of Prairie creek, to a point 66 feet east of the west bank of Prairie creek. At the west end of this dam was a wasteweir, over which the water not carried off by the race was allowed to flow. There was a direct fall over the wasteweir of about 4 feet, and a further fall on an incline of about 3 feet. The highway in question is constructed on top of this dam to a point near where the wasteweir is, using the dam as a roadbed to that point, and completing the road across the creek by constructing a bridge from that point to the west bank of Prairie creek, south of and opposite the wastewier. The nearest point of the wasteweir to the bridge is at the east end, where it is 16 feet and 2 inches north of the bridge, and at the west end it is 28 feet north of the bridge. The bridge is 66 feet long and 16 feet wide, with railings along each side. There was nothing to hide the view of the water from the sight of horses at any point upon said bridge, or upon coming upon the same from the east side thereof. The highway, as it approaches the bridge, is 20 feet in width, being widened somewhat near the east end of the bridge, at a point 12 feet back from the east end of the bridge being 29 feet wide, and nearer the bridge being still wider. There was not a railing on either side of this highway. The declaration averred that "immediately north of said bridge, at a distance of less than 50 feet, was a part of the said Prairie creek milldam over which the waters of said Prairie creek flowed with great and continued noise, which said noise and disturbance, and disturbance of the waters, was liable to cause horses and other animals to become frightened in crossing said bridge and in passing along said highway." It further avers the want of railings or barriers, and that the highway was not reasonably safe and fit for travel without them, and that "as the plaintiff was crossing said bridge the horse, to which the vehicle in which she was riding was attached became frightened at the roar and disturbance of the water above said bridge, and at the east end of said bridge backed the buggy in which the plaintiff was riding down said embankment about 12 feet east of the east end of said bridge on the south side of said highway. The plaintiff was obliged to spring from said buggy in order to save her life, or to save her from injury still greater than that which she did at such time and place sustain, and in so doing was greatly, seriously, and permanently injured in the limbs and body," etc. The circuit judge directed a verdict in favor of the defendant, and the plaintiff brings error. The circuit judge evidently adopted the view contended for by defendant's counsel in this court, that the want of barriers was not the proximate cause of the injury to the plaintiff, and therefore that the plaintiff could not recover. Defendant's counsel rely, to support the ruling of the court below, upon numerous decisions of this court among which are Agnew v. Corunna, 55 Mich. 428, 21 N.W. 873; Beall v. Township of Athens, 81 Mich. 536, 45 N.W. 1014; St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463, 56 N.W. 18; and Bleil v. Railway Co., 98 Mich. 228, 57 N.W. 117. In Agnew v. Corunna a large boulder had been left in the street after excavating the same, and leave had been given to a private individual to remove the stone. The circuit court allowed the jury to assume that a city is liable for leaving or allowing in its streets that which is dangerous, by reason of a tendency to frighten passing teams. This court said: "The stone, as is not disputed, was lawfully put there, in the first place, in the course of street repairs. If it was the duty of the city to see that it was not left there indefinitely, it was equally its right to sell or give it away, and, having done so, it could take no...