Wakeham v. Township of St. Clair

• Decision Date: 18 March 1892
• Citation: 91 Mich. 15,51 N.W. 696
• Court: Michigan Supreme Court
• Parties: WAKEHAM v. TOWNSHIP OF ST. CLAIR.

51 N.W. 696

91 Mich. 15

WAKEHAM v. TOWNSHIP OF ST. CLAIR.

Supreme Court of Michigan

March 18, 1892

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Action by Frederick C. Wakeham, by Richard Wakeham, his next friend against the township of St. Clair, for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed. Avery Bros.

, for appellant.

Atkinson, Vance & Wolcott, for appellee.

MCGRATH, J.

This action is brought to recover for injuries occasioned by reason of an alleged defective highway. From St. Clair to Port Huron the highway is laid along the west bank of the St Clair river. Near where the injury occurred a creek empties into the river, and for a distance of from 30 to 40 rods on either side of this creek the road-way had been built up with logs and earth. To protect this portion of the highway from the action of the water, the township had constructed a break water, from 2 to 3 feet high, for some 60 or 80 rods along the river. The breakwater was formed by first laying a line of logs parallel with the river, and then piling transversely thereon slabs and edgings to the height of the road-bed. The slabs were 4 feet long, the outer end of the pile being higher than the inner. The space between the pile of slabs and the bank had been filled in with earth, which extended about half way over the slabs. A bridge about 16 feet wide spanned the creek. North of this bridge the breakwater started out in a northeasterly direction, so that the road-bed increases in width to some 40 or 50 feet at a point 5 or 6 rods north of the bridge. Going north after crossing the bridge, the usually traveled way inclines to the west. A footpath follows the edge of the slabs from the bridge northerly. There were frequent heavy rains during the fall of 1886, and the water in the river was unusually high, and at the time of the injury stood within 8 inches of the top of the slab-pile. The boat swells dashed the water into and over the slab-pile, and the filling at the inner end of the slabs had, in places, become undermined, and holes from 6 to 8 inches in diameter, had appeared, from time to time, on the inside line between the old highway and the edgings. At the time of the injury two holes existed,-one at the bridge, which was "2 feet across," and into which a rail or plank had been stood on end to warn the public; and the other, within 20 to 30 feet north of the bridge. The witnesses generally agree as to the number and location of the holes that appeared, although two witnesses say that there were three holes, within the distance given, north of the bridge. On the evening of November 18, 1886, at between 4 and 5 o'clock, plaintiff, on horseback, was driving north upon this portion of the highway at a gallop, when his horse either stepped into a hole already existing, or broke through at another point where the filling had been undermined, and plaintiff was thrown from his horse, and severely injured.

The first question of fact was as to at what point in the road the accident occurred. The person who saw plaintiff fall, and who ran to the spot and assisted him, the person who took plaintiff from the place with a conveyance, and the person who, upon the following morning, took from the hole one of the horse's shoes which had been wrenched off, who were each called by plaintiff, testify that the horse broke through and plaintiff was thrown at a point 5 or 6 rods north of the bridge; that the hole was a fresh one, and there was fresh dirt around it, and there was no other hole, until a point from 3 to 4 rods south was reached. The main traveled track at this point was near the west side of the road. There was room to drive along west of the wagon track. It was about 13 or 14 feet from the east side of the main track to the west end of the slabs, or to the point where the horse broke through. It had been raining for several days, and rained in the forenoon of the day of the accident, and, although the soil was sandy, there was a depression in the road-way at this point, and water stood to the depth of from 3 to 4 inches across the tracks, and up to within 3 or 4 feet of the place where the horse broke through. The bed of the road-way for several feet west of the slabs was covered with greensward. The wagon tracks were all from 6 to 10 feet west of the slabs at this point. The only place where the traveled track came near the slabs was at the bridge.

Plaintiff's contention was that the accident occurred within a few feet north of the bridge; that there was a mud-hole in the road just north of the bridge, and two holes at the edge of the slabs, within a few feet of each other; that he saw these two holes; that his horse stepped into the second hole before plaintiff could prevent him; that plaintiff pulled upon the horse, and the horse recovered himself, but immediately either stepped into a third hole or broke through; that the horse turned towards these holes to avoid the mud in the road. Plaintiff's brother, next morning, went to the scene of the accident, and describes two holes, and only two, just north of the bridge, within 8 feet of each other, and that he saw the prints of the horse at the second hole. Another brother testifies to going to the place three days after the accident, and to finding a water or mud hole in the road-way just north of the bridge, "8 feet wide and 16 feet long," and two holes about 2 feet deep at the edge of the slabs opposite the water or mud hole. A brother-in-law says that he found a mud-hole in the road just north of the bridge; that it ran about 16 feet north and south, and about 6 or 8 feet wide; that there were two holes at the slabs about 8 feet east of the mud-hole. Two witnesses say that they saw the place three or four days before the accident, and think there were three holes just north of the bridge. A large number of witnesses were sworn, who agree that there were but two holes within six rods north of the bridge before the accident, and they locate these, one at the bridge and the other within two rods north of the bridge. The only evidence on the part of the plaintiff, other than that of the three witnesses first referred to, tending to locate the place of the injury, was that of plaintiff and that of the brother who says he saw the prints of the horse. No witness denies the existence after the accident of the freshly-made hole five or six rods north of the bridge. Plaintiff's witnesses generally say that they did not look for it. A number of witnesses locate it, and testify to the fact of its existence, and that it was discovered just after the accident, and that it was made in the greensward, and surrounded with fresh earth.

Counsel for defendant requested the court to instruct the jury that "(1) if the hole made by the plaintiff's horse did not exist before the accident, but was made at the time of the accident by the plaintiff's horse, and there was nothing upon the surface of the road at that point to give notice or knowledge that a hole was being eaten away underneath by the water, and no notice was given to the township officers of such undermining, then the plaintiff cannot recover. (2) If the hole or holes into which pl...