Sharp v. Township of Evergreen

• Decision Date: 03 November 1887
• Citation: 67 Mich. 443,35 N.W. 67
• Court: Michigan Supreme Court
• Parties: SHARP v. TOWNSHIP OF EVERGREEN.

35 N.W. 67

67 Mich. 443

SHARP v. TOWNSHIP OF EVERGREEN.

Supreme Court of Michigan

November 3, 1887

Error to circuit court, Montcalm county; VERNON H. SMITH, Judge.

Lemuel Clute, (NJ Brown, of counsel,) for defendant, appellant.

Ellsworth & Rarden, for appellee.

SHERWOOD, J.

The state road running from Ionia to Houghton lake was built by the state under Act No. 117 of the Laws of 1859, p. 310. It runs north and south on the line between the townships of Evergreen and Sidney, in the county of Montcalm. Evergreen lies on the east, and Sidney on the west, side of the road. The plaintiff is the wife of James Sharp, and they reside in the city of Stanton. Mr. Sharp owned a farm in the town of Bushnell, about eight miles from Stanton, and on Sunday the eighth day of July, 1883, Mrs. Sharp rode out to their farm with her husband, in the morning, and on returning in the afternoon came over the road in question, and at a point about two miles south of Stanton they descended a sand hill in the highway, where the road had been raised to the height of 15 feet, and left about 16 feet wide, unprotected on either side by any railings or other structure to prevent persons or teams from going off the bank at the sides in case of accident.

When about half way down the hill, the horse after which the plaintiff and her husband and child were riding shied to the west side of the track, which was planked at this point, and becoming unmanageable, went off the embankment, carrying with him and the buggy the plaintiff, her husband, and child seriously injuring Mrs. Sharp, and disabling her from performing any kind of labor, and entailing upon her much pain and suffering. It is for this injury she brings her suit against the defendant, under Act No. 214, Laws of 1879, and amendments thereto made in Act No. 244, Laws of 1885 counting upon the negligence of the defendant in not providing proper safeguards at said embankment to prevent persons and horses from being precipitated down the precipice. The defendant pleaded the general issue. A trial was had in the Montcalm circuit, which resulted in a verdict and judgment for the plaintiff for $1,500. The defendant brings error.

At the close of the trial counsel for the defendant asked the court to charge the jury as follows:

"(1) There is no evidence in the case which shows the township was under any legal obligation to keep the road in repair at the place where the accident occurred, and your verdict should be for the defendant. (2) The undisputed evidence shows that the road at the place where the injury occurred was a state road not within the jurisdiction and control of defendant, therefore your verdict should be for defendant. (3) The plaintiff avers in his declaration that there was no railing or other protection provided at any time to prevent horses or teams from running off from said plank road on the west side thereof, and that it was the duty of defendant to have built and maintained a railing or guard at the place where the accident occurred; but the road was as the state built it, so far as the railing is concerned, and we have no statute which imposes any duty on townships to complete state roads, and defendant was not in fault for leaving the road in question without a railing at the place named in the declaration, and your verdict should be for the defendant. (4) If you find the injury to plaintiff occurred in part because of the road not having a railing, and in part because of the careless driving of a blind horse, plaintiff cannot recover. And in considering this question of contributory negligence you should find that greater care should be used in driving a blind horse than one that is not blind. (5) Plaintiff testified that she had been to see her daughter regarding threshing; that she went on Sunday, and was returning on Sunday, the day of the accident. She was not, then, under the terms of our statute, which forbids any one performing any labor, business, or work on Sunday, entitled to recover for any damages she sustained while engaged in violating our Sunday laws, which are intended to promote morality, and to keep people from engaging in any work other than work of necessity or charity, and your verdict should be for defendant. (6) The burden of proof is on the plaintiff to show that the accident did not occur on account of careless driving, and if you find in this point the evidence equally balanced, your verdict should be for defendant."

The court refused to charge as requested in numbers two, three and five, and counsel for defendant...