Walker v. City of Ann Arbor

• Decision Date: 01 December 1896
• Court: Michigan Supreme Court
• Parties: WALKER v. CITY OF ANN ARBOR.

69 N.W. 87

111 Mich. 1

WALKER v. CITY OF ANN ARBOR.

Supreme Court of Michigan

December 1, 1896

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Ann J. Walker against the city of Ann Arbor. Judgment for defendant, and plaintiff brings error. Affirmed.

Noah W Cheever, for appellant.

John F Lawrence, for appellee.

MOORE J.

Plaintiff sued defendant to recover for injuries sustained by her from a fall received on a defective sidewalk at about 7 o'clock in the evening of October 7, 1893 which resulted in severe injuries to her. Mrs. Ottley had been ordered by the proper authorities to construct a new walk in front of her premises, upon a grade recently established. She built a cement walk, which was completed the day before the injury occurred. The walk was not dry, and had not been thrown open to the public, at the time of the accident. The west end of the walk was about 6 inches higher than the walk on the adjoining property. At the east end of the new walk there was a drop of 18 or 20 inches. The city authorities had notice of the situation of the walk. It was at the east end of the new walk that the accident occurred. It is the claim of the defendant that the contractor who built the walk erected at each end of the new walk suitable and proper barriers to exclude the public from using the walk, and that these barriers were known to be in place as late as half past 5 o'clock upon the afternoon of the accident, and that they had been removed by some evil-disposed person,-just how long before the accident, no one knows. It was also the claim of the defendant that suitable lights were kept on the barriers when it was dark that upon the evening in question the lights were all prepared, but had not yet been put out, because it was not dark enough to require them. It was the claim of the plaintiff that proper barriers had not been erected by any one; that, when the accident occurred, it was so dark she could not see the dangerous condition of the walk. It was also her claim that the city authorities, after knowledge of the condition of the walk, had not acted at all. After the testimony was all in, the trial judge was requested to direct a verdict for the plaintiff. This he declined to do, and charged the jury as follows: "The legislature of this state has made it the duty of a city to keep in reasonable repair, so they will be reasonably safe and convenient for public travel, all sidewalks within its jurisdiction. The law does not require that the sidewalks shall be kept absolutely safe, but only reasonably so, and fit for public travel. It is the duty of the defendant city to exercise through its officers and its agents, a reasonable and supervisory care over its sidewalks, and, within reasonable limits, to be watchful of their condition and safety. The defendant is not bound to extraordinary diligence, but only an ordinary and reasonable care and diligence. It is not an insurer of safety. It does not undertake to warrant against accidents and injuries. But it does undertake to exercise reasonable care and diligence in respect to the condition of its sidewalks. The plaintiff in this case bases her claim to recover upon the allegations that the defendant city has been guilty of negligence in the care of its sidewalks, and that she met with her accident and injuries by reason of such negligence on the part of the city. The particular negligence complained of by the plaintiff against the defendant is that this sidewalk, when completed, was left in a dangerous situation; that no danger lights or proper barriers were put there to warn and protect the public against accident. It is undisputed that the walk was ordered and laid upon a grade established by the city, and that the street commissioner was present at some time or times during its construction. Now, you will determine from the evidence whether or not this walk, when completed, was dangerous, and whether or not, at the time this accident occurred, this sidewalk was in a dangerous situation or condition. If you find from the evidence that at the time this accident occurred this walk was in a dangerous condition, and unfit for travel, then it was the duty of the defendant to see that proper barriers were placed there during the day, and suitable lights at...