Thompson v. West Bay City
| Decision Date | 07 July 1904 |
| Citation | 137 Mich. 94,100 N.W. 280 |
| Court | Michigan Supreme Court |
| Parties | THOMPSON v. WEST BAY CITY. |
Error to Circuit Court, Bay County; Theodore F. Shepard, Judge.
Action by Martha J. Thompson against West Bay City. From a judgment for plaintiff, defendant appeals. Reversed.
S. G. Houghton, for appellant.
Fred W De Foe, for appellee.
This is a suit for personal injuries. On the evening of October 26 1902, plaintiff was injured by falling over an alleged improperly constructed barrier on Elm street, in said defendant city. This barrier was placed across the sidewalk to guard a newly constructed cement walk. The walk was constructed and the barrier erected by one William Green under a contract with Israel Nontais, the owner of the adjacent property. Some time early in the preceding September, defendant had notified Nontais to construct this sidewalk. Nontais thereupon, on the 15th of September, applied for and received permission from defendant's common council to build the walk. This permission was granted under an ordinance passed by defendant which required the work to be done under the supervision of the city engineer, and obligated the city to pay one-third of its cost.
The case was submitted to the jury upon the theory that defendant was responsible for the neglect of the contractor to properly guard the walk. The jury rendered a verdict for the plaintiff. Defendant asks us to reverse that judgment. The important question in the case is whether the trial court was right in holding defendant responsible for the negligence of the contractor in erecting an unsafe barrier. In entering upon this inquiry, it is important to bear in mind the precise question involved. Plaintiff received the injury, not from a defect in the walk, but from an unsafe barrier. The question involved is not whether the city is under an obligation to put its sidewalks in a condition reasonably safe for travel after knowledge or notice of their unsafety. It is not whether the city was under an obligation to see that the contractor constructing this walk made a walk reasonably safe for travel. It is this: Is the city answerable for the neglect of the contractor, not merely in building the walk, but in performing incidental duties connected with the work? If the contractor, in building this sidewalk, was performing a duty imposed by law upon defendant, there would be little difficulty in sustaining the ruling of the trial court. See Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; Southwell v. Detroit, 74 Mich. 438, 42 N.W. 118; Baker v. Grand Rapids, 111 Mich. 447, 69 N.W. 740; Monje v. Grand Rapids, 122 Mich. 645, 81 N.W. 574; Beattie v. Detroit, 129 Mich. 20, 88 N.W. 71. But we cannot say that the duty of constructing this walk legally devolved upon the defendant municipality. The law governing the matter is contained in chapter 23 of defendant's charter. See Act No. 442, Loc. Acts 1897, pp. 746 to 748. By this act, defendant is given authority, not to itself build sidewalks, except in the contingencies hereafter mentioned, but to require the owners and occupants of adjacent property 'to build, rebuild and maintain' them, Only in the event of the owner's failure is authority given to defendant to build such walk at the owner's expense, though the chapter contains a provision that 'the council may, by two-thirds vote of all the aldermen elect, provide by ordinance for the rebuilding, maintaining and keeping in repair of all sidewalks within the city, * * * and pay the expense thereof from the general street fund.' This latter provision is inapplicable, for two reasons: (a) While it authorized defendant, under certain circumstances, to rebuild sidewalks, it did not authorize it to do what was being done in this case--to build them. The statute, for some reason, clearly distinguishes between building and rebuilding sidewalks. (b) Even if this provision permitted--as it did not--defendant to build sidewalks, it could have no bearing upon its responsibility in a case like this, where it had not elected to proceed under it. Defendant could not proceed under this provision without paying the expenses of the improvement from the general city fund. If it determined, as it did in this case, that the walk should be built at the expense of the adjacent owner, it would be unreasonable to hold that the city's responsibility was increased by the circumstance that it might at its own expense have done the work.
Did the enactment of the ordinance change the relation created by the charter between the defendant and the contractor? The ordinance makes it unlawful for a sidewalk to be constructed without first obtaining the permission and consent of defendant's council, and provides that no sidewalk shall be built except as provided by the ordinance or directed by the council. This in no way changed the legal relation between the contractor who built the sidewalk and the defendant. For section 2 of chapter 23 of defendant's charter requires sidewalks to be built 'of such width, materials and manner of construction, and within such time, as the council shall by ordinance or resolution prescribe.' It cannot possibly be maintained that defendant became responsible for the contractor's negligence because it chose, as it had a statutory right to choose, to contribute a portion of the expense of constructing the walk. Nor is defendant responsible because it supervised the work of construction. In doing this, it was only performing an obligation imposed upon it by the express language of its charter, requiring the building of all sidewalks to be done under the direction of its common council.
Section 4 of said chapter 23 makes it the duty of defendant's council 'to see that all ordinances and resolutions relating to the building, rebuilding and repairing of sidewalks * * * and the keeping of the same free from ice and snow and from all obstruction * * * are strictly enforced.' While it may be contended that this language imposed a duty to exercise care in supervising the building of sidewalks, it is obvious that it falls far short of making the municipality an insurer of the diligence of a third person, to whom the law gives authority to build them. It might very properly be held that the city is responsible for any negligence in supervising the contractor, but the question involved in this case, as heretofore stated, does not relate to its responsibility for such negligence, but it is whether it is responsible for all negligence of the contractor whose work is thus supervised. If defendant was responsible for the contractor's negligence to build a safe barrier, an extraordinary obligation rested upon it. The contractor was neither its agent nor servant. It had no voice in his selection. He was performing a duty which the law devolved, not upon defendant, but upon a third person. Defendant intrusted him with no authority. No contract relations existed between him and defendant. If, under these circumstances, defendant is responsible for the contractor's negligence, there is a responsibility which can be discharged by no such general supervision of the work as will insure results. Defendant can discharge this obligation only by having a representative constantly on the ground, not merely supervising but directing every detail of the work. If there is such an obligation, it must be imposed, not by reason, but by some statutory enactment. Defendant's responsibility depends upon the proper construction of Act No. 264, p. 345, of the Public Acts of 1887 (chapter 91, Comp. Laws 1897). By section 1 of said act (section 3441, Comp. Laws 1897), a municipality is responsible for '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 * * * sidewalks * * * on the same, in reasonable repair and in condition reasonably safe and fit for travel.' And it is provided by section 2 of said act (section 3442, Comp. Laws 1897) '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...
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