Urtel v. City of Flint

• Decision Date: 02 December 1899
• Citation: 80 N.W. 991,122 Mich. 65
• Court: Michigan Supreme Court
• Parties: URTEL v. CITY OF FLINT.

80 N.W. 991

122 Mich. 65

URTEL v. CITY OF FLINT.

Supreme Court of Michigan

December 2, 1899

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

Action by Charles Urtel against the city of Flint. Judgment for plaintiff. Defendant brings error. Affirmed.

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

Brennan & Cook, for appellee.

MONTGOMERY J.

The plaintiff recovered a verdict and judgment for $450 for injuries sustained by stepping into a hole in a sidewalk which, it is alleged, the defendant city allowed to become and remain in a dangerous condition. The averment as to the fault of the city is as follows: 'By allowing one of the planks of said sidewalk to become broken and splintered, thereby making a depression on the surface of said walk of from four to six inches wide, and fifteen to eighteen inches in length, and about two to three inches in depth, which depression, when subjected to the weight of a person's foot and body, caused the splintered portion of said plank, to wit, the depression above described, to sink to the ground beneath the sidewalk, a distance of from three to four inches.' There was testimony fairly tending to support the plaintiff's allegation as to the character of the defect, and also tending to show that the sidewalk in question had been in the condition described for at least two months prior to the injury to plaintiff. Defendant's counsel contend that such a depression is not a dangerous place, and is reasonably safe and fit for travel, within the meaning of the statute. The question was raised by objections to proofs under the declaration, and also by requests to charge. Counsel cite, in support of this declaration Weisse v. City of Detroit, 105 Mich. 482, 63 N.W 423, and Yotter v. City of Detroit, 107 Mich. 4, 64 N.W. 743. In each of the cases cited the defect alleged was a rise in the sidewalk. In the first case it was stated that the fact that the plank was not nailed down does not seem to have caused the injury. It was the same as though it had been nailed, but was 1 1/2 to 2 inches above the other, so that the question is fairly presented whether such a rise is a defect in the walk so that it is not reasonably safe. It was said, in disposing of the case: 'If the plaintiff could recover in this case, every municipality would be compelled to exercise the most rigid care over its streets to see that no rise of two inches occurred along the line of travel over side and cross walks.' The Yotter Case follows this holding. These two cases follow the holding that a rise of from two to three inches in a sidewalk is not such a defect as makes the city chargeable under the statute. The duty is thrown upon the traveler to look out for such slight variations in the walk, and it is assumed that, when properly used, no damage is likely to occur to a pedestrian traveling such a walk. This case presents a very different aspect. The defect did not consist in a slight rise in the sidewalk, but, according to the averments, the plank in question was broken so that there was a depression of...