Rufner v. Traverse City

• Decision Date: 06 January 1941
• Docket Number: No. 132.,132.
• Citation: 296 Mich. 204,295 N.W. 620
• Parties: RUFNER v. TRAVERSE CITY.
• Court: Michigan Supreme Court

296 Mich. 204

295 N.W. 620

RUFNER

v.TRAVERSE CITY.

No. 132.

Supreme Court of Michigan.

Jan. 6, 1941.

Action by Oscar Rufner, administrator of the estate of Richard Rufner, deceased, against the City of Traverse City, to recover damages for the death of a 13 year old boy. Judgment for plaintiff, and the defendant appeals.

Judgment affirmed.

BOYLES and WIEST, JJ., dissenting.Appeal from Circuit Court, Grand Traverse County; Parm C. Gilbert, judge.

Argued before the Entire Bench.

Charles H. Menmuir, of Traverse City, for appellant.

Robert B. Murchie, of Traverse City, for appellee.

SHARPE, Justice.

This is an action for damages growing out of the death of a 13 year old boy. The material facts are not in dispute. The city of Traverse City owns and operates a municipal light and power plant which furnishes electricity to its inhabitants and power for street lighting. About 9:30 p. m., on October 31, 1939, Richard Rufner was walking near the intersection of Sixth and Maple streets in said city. While he was on the crosswalk, a street light pole owned by the city and located on the southeast corner of the intersection within the highway limits in the grass plat between the street curb and sidewalk fell and struck him rendering him unconscious, from which injuries he died approximately one and a half hours later. Subsequent inspection disclosed that the pole had become rotted near the ground level so that only about two inches of solid wood remained. The pole was 30 to 35 feet long and from about 10 to 12 inches in diameter. It had been erected approximately 20 years prior to the death of Richard Rufner, but no records were obtainable of its ever having been inspected by the city prior to the mentioned accident.

Richard Rufner was to have continued in school until he finished high school. He earned about $3 per week while going to school and it cost about this sum to feed, clothe and care for him. He was allowed to keep about $1 of his earnings for spending money.

Plaintiff, as administrator of the estate of Richard Rufner, deceased, began suit and the declaration as filed contained two counts: First, that the city operated the light plant as a private enterprise and that a pole negligently maintained in connection with this enterprise fell, resulting in Richard Rufner's death; second, that the pole in question constituted a highway defect for which the city was liable under 1 Comp.Laws 1929, § 4225. Prior to the trial of the case, plaintiff stated in court that he relied solely upon the second count in the declaration. The cause came on for trial before a jury and at the close of plaintiff's case, defendant made a motion for a directed verdict on the grounds that street lighting was a governmental function, therefore, there was no liability; and that the highway statute did not apply. This motion was denied. The jury rendered a verdict in the sum of $3,570. Upon motion, the sum of $364.95, representing the funeral and medical bills which by consent had not been presented to the jury for its consideration, was added to the judgment. By remittitur filed by plaintiff, at the suggestion of the trial court, the judgment was reduced to $2,864.95, being $2,500 plus the funeral and medical bills.

Defendant appeals and contends that the trial court was in error in denying defendant's motion for a new trial and holding that street lighting was proprietary, corporate function and not a governmental function of the defendant city. We have in mind that the above holding was made upon defendant's motion for a new trial. We do not understand nor does the record show that such a question was before the jury for its consideration.

The trial court instructed the jury as follows:

‘The statute of this state requires certain things relative to a highway such as this public street:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this state by reason of neglect to keep such public highways or streets and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair and in a condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action-' and so on.

‘Now, that section means just what it says: That it is the duty of the city to keep its streets in a reasonably safe condition for travel. It doesn't mean it guarantees that no one will get hurt; it doesn't mean anyone is insured against all and every injury; but it means there should be a reasonable safety always present at any such location.’

We have heretofore said that if the trial court comes to the right conclusion and renders a just and legal decision, it matters not what reasons were given for such a decision. In our opinion the pivotal question involved in this case is, Even though the city was performing a governmental function in lighting its streets, would not the common-law doctrine of municipal immunity have to yield to the specific statutory liability imposed on the defendant for failure to maintain its streets in a condition reasonably safe and fit for travel?

Plaintiff urges that even though the street light pole in question was being used in the performance of a governmental function, yet it constituted a highway defect within the meaning of 1 Comp.Laws 1929, § 4225, which reads in part as follows: ‘It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel * * *.’

Assuming that the city in erecting and maintaining the pole in question was employed in a governmental function, it is our opinion that the above highway statute removed the immunity of the city from liability. The reason that a city was not liable at common law for injuries caused by defective highways was because the duty to repair was a public one, and thus, since the city in the management and control of its highways was acting in a governmental capacity, it was immune from liability. City of Detroit v. Blackeby, 21 Mich. 84, 4 Am.Rep. 450;Roberts v. City of Detroit, 102 Mich. 64, 60 N.W. 450,27 L.R.A. 572. In effect the above statute removes the exemption from liability and declares that the city must keep its highways reasonably safe for travel.

In Jablonski v. City of Bay City, 248 Mich. 306, 226 N.W. 865, 866, we said:

‘On motion to dismiss, in the nature of demurrer, the court held that the declaration did not state a cause of action, as the city had provided a safe place for pedestrians to walk and the wire was not such a defect in the street as rendered it unsafe for travel.

‘The liability of a city for injuries caused by defects in its streets is purely statutory. The statute, Comp.Laws 1915, § 4584 et seq., predicates such liability on the failure of the city to keep its streets ‘in reasonable repair and in condition reasonably safe and fit for travel.’ Section 4584.

‘This does not require that all parts of a country road, even within corporate limits, shall be prepared for travel. Keyes v. Village of Marcellus, 50 Mich. 439, 15 N.W. 542,45 Am.Rep. 52. And it undoubtedly is the right of a city to determine, in its discretion and beyond judicial review, what part...