Weisse v. City of Detroit
| Decision Date | 28 May 1895 |
| Court | Michigan Supreme Court |
| Parties | WEISSE v. CITY OF DETROIT. |
Error to circuit court, Wayne county; George S. Hosmer, Judge.
Action by Louise Weisse against the city of Detroit. From a judgment for plaintiff, defendant brings error. Reversed.
John J Speed, for appellant.
Dickinson Thurber & Stevenson, Charles B. Warren, and Henry M. Cheever for appellee.
This action was brought to recover damages for injuries received by reason of a defective cross walk in the city of Detroit. Plaintiff recovered verdict and judgment for $500 in the court below. Defendant brings error.
The declaration alleged that the plaintiff, while passing along the street, in the evening of April 22, 1892, fell by reason of a defect in the cross walk, which was caused by the end of a plank, which was lengthwise in the sidewalk, being loose and being raised up above the walk some two inches or more. The plaintiff testified that the plank was up about one and one-half inches. Mrs. Higgins, plaintiff's daughter, testified that the plank was up three-quarters of an inch above the other plank which joined it. Another witness stated that it bowed somewhat in the middle, and the end would spring up and down as it was stepped on. Testimony was also given tending to show that it had been in that condition about two weeks before the accident, and that others had fallen there, by reason of the defect, before the plaintiff was injured. It is contended by counsel for the city that, notwithstanding the plaintiff was injured, and the walk was defective, the defect was not such as to make the walk unreasonably unsafe or unfit for ordinary travel, and the court below was asked to so charge, which was refused. The accident happened at the intersection of Porter and Twenty-Third streets, some two miles from the business part of the city, and, counsel contends, where there was no great amount of travel; that, therefore, the court should have said as a matter of law that no such defect existed as authorized a recovery. The statute provides: "It is hereby made the duty of townships, villages, cities or corporations to keep in reasonable repair so that they will be reasonably safe and convenient for public travel all public highways, cross walks and culverts that are within the jurisdiction and under their care and control and which are open to public travel," etc. Section 3, Act 264, Pub. Acts 1887, being section 1446e, 3 How. Ann. St. This is an amendment of Act 244, Pub. Acts 1879 (How. Ann. St. � 1445), which provides: "It is hereby made the duty of townships, villages, cities or corporations to keep in good repair, so they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross walks and culverts that are within their jurisdiction and under their care and control, and which are open to public travel," etc. The act of 1879, it will be observed, made it the duty of the township, village, or city to keep its streets, cross walks, etc., in good repair, "so that they shall be safe and convenient for public travel"; while the amendatory act of 1887 provides a duty to keep them "reasonably safe." Can we say, as matter of law, that this walk was reasonably safe and convenient for public travel? It would be a great burden upon townships, villages, and cities if it be held that every slight rise in a walk makes it not reasonably safe and convenient for public travel. In the present case the rise was from 1 1/2 to 2 inches. The plaintiff was injured by "stumbling against it," as she says. There are, and must of necessity be, many places in walks, and especially in cross walks, with rises greater than this by which the plaintiff was injured. In many street crossings, and especially where asphalt or brick pavements are used, the cross walks are on a level with the street, and a step down of several inches below the level of the sidewalk. Can it be said that every one of these cross walks are not reasonably safe and convenient for public travel? We think not. The legislature, by the amendment, evidently intended that the walks should be kept reasonably safe, and not absolutely safe. In cities having many miles of walks it would be an utter impossibility to make these walks absolutely safe, and the legislature did not intend to impose that duty upon municipalities by this act, whatever construction the act of 1879 may have had. It would require an army of men in the city of Detroit to do this. Inspectors are not expected to carry around with them a smoothing...
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