Sykes v. City of Battle Creek, 120.

• Decision Date: 05 June 1939
• Docket Number: No. 120.,120.
• Citation: 288 Mich. 660,286 N.W. 117
• Parties: SYKES v. CITY OF BATTLE CREEK.
• Court: Michigan Supreme Court

288 Mich. 660

286 N.W. 117

SYKES

v.CITY OF BATTLE CREEK.

No. 120.

Supreme Court of Michigan.

June 5, 1939.

Action by Josephine Sykes against the City of Battle Creek, a municipal corporation, for injuries sustained from fall caused when the heel of plaintiff's shoe caught in an iron sewer grating. From judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench, except NORTH, J.

Ronald M. Ryan, of Battle Creek, for appellant.

Walter P. North, of Battle Creek, for appellee.

BUTZEL, Chief Justice.

Plaintiff claims that on July 11, 1936, while stepping from a curb at the intersection of a street in Battle Creek, she caught the heel of her right shoe in an iron sewer grating and was thrown to her knees and onto her left side, fracturing her hip. As a result she is permanently crippled and disabled. Defendant in denying the allegations, asserts not only lack of due care and caution on the part of plaintiff but that she did not file notice of claim of accident as required by Chapter 39 of the Charter of the City of Battle Creek. This provides for a notice in writing within 60 days from the date of the injury claimed to have been received by reason of any defect in any sidewalk, crosswalk, street, bridge, alley, court or park or any place in the city or in any work in which the city shall be engaged Before the jury was drawn, defendant moved for a judgment of no cause of action,because of plaintiff's failure to give notice within the required time. Judgment for defendant was thereupon entered and is here appealed from.

It is plaintiff's position that the charter provision constitutes an invalid limitation on the right of a claimant to bring suit against the city for damages allegedly caused by a defective highway condition. The charter, which was adopted in 1913 under the provisions of the Home Rule Act (1 Comp.Laws 1929, § 2228 et seq.; Stat.Ann. § 5.2071, et seq.), is claimed to be in conflict with the provisions of 1 Comp.Laws 1929, § 4230 (Stat.Ann. § 9.598), which are as follows: ‘In the event damages are sustained by any person, either by bodily injuries or to his property, because of the defective condition of any highway, street, bridge, sidewalk, crosswalk or culvert in any city or incorporated village of this state where written notice of such inquiry [injury] and defect is now required by law to be served upon such village or city before recovery can be had, it will be necessary to show that such person did serve written notice upon said city or village within sixty [60] days from the time of the happening of such injury. * * * The notice with specify the location and nature of said defect, the injury sustained, and the names of the witnesses known at the time by claimant. * * * No other or further notice shall be required. The intent and purpose of the provisions of this chapter are to make the law of liability on the part of townships, villages, and cities for injuries sustained by persons because of the defective condition of the highways and the procedure in giving notice thereof, uniform throughout the state, and to repeal all laws or acts of the legislature be the same general, local...