Thomas v. City of Flint

• Decision Date: 20 February 1900
• Citation: 81 N.W. 936,123 Mich. 10
• Court: Michigan Supreme Court
• Parties: THOMAS v. CITY OF FLINT.

81 N.W. 936

123 Mich. 10

THOMAS v. CITY OF FLINT.

Supreme Court of Michigan

February 20, 1900

Error to circuit court, Genesee county; Charles H. Wisner, Judge.

Action by Gideon Thomas against the city of Flint. From a judgment for plaintiff, defendant brings error. Reversed.

Montgomery and Moore, JJ., dissenting.

Ed. S Lee (J. S. Parker, of counsel), for appellant.

Johnson & Stevens, for appellee.

HOOKER J.

The plaintiff was injured upon a Tuesday night, through the absence of a short board or plank forming part of a bridge floor, which was first noticed to be loose on the Saturday night previous. On that occasion it was laid back in place by the observer. On Monday or Tuesday evening the witness who first discovered that it was loose found that it was gone and laid a piece of sewer crock over the place where the missing board had been. The evidence showed that the city employed a man to walk over its walks and bridges, including this bridge, with a view to the immediate repair of defects. Apparently his duty was not to tear up boards to examine the joists below, but merely to inspect by looking at and trying the walks and planks by stepping upon them, and noticing any outward signs of weakness or danger. The circuit court permitted the jury to find a verdict against the defendant upon the ground that it did not make a reasonable inspection of the bridge, and that it was the duty of the city to make such inspection. The court's charge contained the following: 'Under the statute which I have read to you, the notice mentioned therein may be either actual or constructive,--actual, where some officer of the city, forming a part of that branch of the city government having some authority in respect to sidewalks of said city is directly called to such defect; constructive, where the defect is of such a character, and has existed for such a period, that the city is guilty of negligence in not being aware of such defect, and in such case the law presumes that the city actually knew of such defect. But, in order to make the law in regard to constructive notice apply, you must be able to find from a preponderance of the evidence that at the very place where it is claimed the injury was received the bridge was not in good repair, and in a condition reasonably safe and fit for travel, and that the city was guilty of negligence in not informing itself of such condition, and that sufficient time had elapsed after the city, by the exercise of ordinary care, could have informed itself of such defect, and have had a reasonable opportunity to make such repairs. I will also state to you that, in order to make the city liable, you must be able to find from a preponderance of the evidence that the city was negligent in not ascertaining the existence of the unsafe condition; and that, had it performed its duty in that respect, it would have had reasonable opportunity to put it in a condition required by law.' Previous to the year 1879, those who suffered injury through accidents due to the neglect of municipalities to keep the highways in a reasonably safe condition had no right of action against such municipalities. See Merkle v. Bennington Tp., 58 Mich. 158, 24 N.W. 776, and cases cited. In that year an act was passed creating a liability in such cases. In 1887 a new act was passed, much like that of 1879, which it superseded, and plaintiff's action rests upon the later act. Pub. Acts 1887, p. 345. Section 1 gives a right of action for damages to any person sustaining bodily injury by reason of neglect to keep highways, sidewalks, and bridges in reasonable repair, and in condition reasonably safe and fit for travel by the township whose authority extends over the same. Section 2 is as follows: 'If any horse or other animal, or any cart carriage, or vehicle, or other property, shall receive any injury or damage by reason of neglect by any township, village, city, or corporation to keep in repair any public highway, street, bridge, sidewalk, cross-walk, or culvert, the township, village, city or corporation whose duty it is to keep such public highway, street, bridge, sidewalk, cross-walk or culvert in repair shall be liable to and shall pay the owner thereof just damages, which may be recovered in an action of trespass on the case before any court of common jurisdiction: provided, that in all actions brought under this act it must be shown that such township, village, or city has had reasonable time and opportunity after knowledge by or notice to such township, village or city that such highways, streets, bridges, sidewalks, cross-walk, or culvert have become unsafe or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein after such knowledge or notice.' The defense in this case is that the plaintiff has failed to show that the township had knowledge or notice that the bridge was unsafe or unfit for travel, as required by the proviso. It is not claimed that the defendant's officers had actual notice that the plank was loose, or that the bridge was in any way unsafe, or likely to become so in the near future; but it is contended that the stringer had begun to decay, and that the township had constructive notice of that fact through its alleged neglected duty of a proper inspection, and we are cited to the case of Moore v. Kenockee Tp., 75 Mich. 332, 42 N.W. 944, 4 L. R. A. 555, as an authority supporting the contention. In that case contention was made that recovery could not be had in the absence of express notice, but the court held that such would be a too strict construction of the act and that the circumstances might justify the jury in finding that the township had what was called 'constructive notice.' The language which counsel urge so forcibly is used in that case as it had been in others, viz.: 'A defect may exist and be unknown, and the town still be liable on the ground that the prime fault consists in being ignorant, it being a clear principle that a want of knowledge may, in given circumstances, imply a want of care.' Upon this and similar language is based the argument that the township is chargeable with constructive notice of all things which the proper performance of the alleged neglected routine duty of inspection would have disclosed, and it is said that, although no officer supposed the bridge was in any respect weak, or had any reason to believe, or even suspect, it, yet the failure to ascertain the fact is due to neglect; hence the township is chargeable with the notice that the statute makes essential to a right recovery. It seems obvious that such a rule is equivalent to charging the town for neglect to keep its bridge in safe condition, and that the declaration might as well charge such neglect directly as through the circumlocution of constructive notice, and that the result is the practical nullification of the proviso requiring notice; but it is urged that the decisions admit of no other interpretation, and have settled the question in accordance with the contention of the plaintiff's counsel. We will review the history of this question.

The case of Medina Tp. v. Perkins, 48 Mich. 67, 11 N.W 810, is the rock upon which plaintiff bases his claim. It arose under the earlier statute, which did not contain the requirement that knowledge or notice should be shown. It was there said that, while 'townships are only required to exercise ordinary care and prudence and reasonable intelligence in performing their duty of supervising the condition of roads and bridges, and keeping them in repair,' 'want of knowledge sometimes implies a want of due care; as, where township officers, whose duty it is to keep bridges in a safe condition, do not know of defects which an examination would readily disclose.' In the case of Stebbins v. Keene Tp., 55 Mich. 552, 22 N.W. 37, the language of Medina Tp. v. Perkins was repeated, viz.: 'A defect may exist and be unknown, and the town still be liable, on the ground that the prime fault consists in being ignorant; it being a clear principle that a want of knowledge may, in given circumstances, imply a want of care [i. e. negligence]. * * * The general duty of a township is to exercise through its officers a reasonable supervision over its ways and bridges, and within fairly practicable limits to be watchful of their condition and trustworthiness, and see that they are kept in a reasonably safe condition for public travel. Its officers may not ignore the dictates of common sense and the lessons of ordinary experience, and refuse to see or refuse to heed what others see and others understand. When it is generally known that a bridge has become decrepit, or when a bridge has stood so long that there is much suspicion of it, the officers of the township may not disregard the warning conveyed by these circumstances, and think to excuse their neglect to take action on the ground of having had no actual notice of a dangerous infirmity.' See, also, Woodbury v. City of Owosso, 64 Mich. 248, 31 N.W. 130. In the year 1887 a radical change was made in the law. See Pub. Acts 1887, No. 264. The act will be found in chapter 91, Comp. Laws, where copious notes give the history of this legislation, and its judicial interpretation. The important change is found in the proviso to section 3442. It reads as follows: 'Provided, that in all actions brought under this act it must be shown that such township, village, or city, has had reasonable time and opportunity after knowledge by or notice to such township, village, or city, that such highways, streets, bridges, sidewalks, cross-walk, or culvert have become unsafe or unfit for travel to put the same in the proper condition for use, and has not used reasonable diligence therein after such...