Weissert v. City of Escanaba, 90.
| Decision Date | 30 June 1941 |
| Docket Number | No. 90.,90. |
| Citation | 298 Mich. 443,299 N.W. 139 |
| Parties | WEISSERT v. CITY OF ESCANABA. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by William Weissert, guardian of Daniel Weissert, minor, against the City of Escanaba, for injuries sustained by the minor when he took hold of an electric light wire of the defendant's system. From a judgment for the plaintiff for $500, defendant appeals and plaintiff files a cross-appeal.
Reversed and remanded, with directions.Appeal from Circuit Court, Delta County; Frank A. Bell, judge.
Argued before the Entire Court.
Denis McGinn, City Atty., of Escanaba, (Herbert J. Rushton, of Lansing, of counsel), for defendant and appellant.
L. J. Archambeau, of Iron Mountain, for plaintiff and appellee.
The plaintiff herein was awarded a verdict by a jury against the City of Escanaba in the Delta County Circuit Court as damages for personal injuries received by him when he took hold of an electric light wire of defendant's system on September 12, 1936. At this time plaintiff was 12 years of age.
For reasons which will hereinafter be disclosed, we are adopting the evidence offered by plaintiff, together with some of the undisputed evidence of defendant, as a statement of facts which was before the court and jury upon the trial of the issues here involved, and which are to control us in the determination of the questions raised on this appeal.
Defendant, City of Escanaba, owns its own municipal light plant and also has an extension which runs outside of the city for a distance of several miles. Such extension lines run through Ford River Township on what is termed the Lake Shore Road, being a paved highway, M-35, on which highway plaintiff lives. After leaving the city, defendant's lines run largely through densely wooded territory within the highway right of way practically the entire distance. The highway right of way is 100 feet in width and in many places the wires and poles of defendant are beneath branches of trees. The electrical engineer and one of the state highway men, according to the undisputed testimony, patrolled this line at least once a month, and when the engineer discovered trees or branches that appeared to him dangerous, he would tell the highway man and the department would send men out to cut them off, or sometimes they would give defendant permission to cut them. This testimony was further to the effect that the city did not cut trees or branches in the highway without permission of that department. At the point of the accident, the defendant's poles and lines were about 35 feet from the center of the paved highway.
On the day of the accident the plaintiff was on his way home from school, and when about 1 3/4 miles from home, he saw a wire suspended over a driveway leading from the main highway to a lake cottage. The wire was about 2 feet above the ground and about 20 feet from the traveled portion of the highway. He walked up to the wire, picked it up and received a severe shock and scrious burns. He said he knew it was an electric light wire. One that ran right by his home and from which his parents' home had been furnished electricity ever since he was born. He said he did not think the wire was dangerous and never knew before that one could get a shock from a high power line.
Near the place of the accident and about 5 feet from the electric line, there was a birch tree about 16 to 18 inches in diameter and of a height of 40 to 50 feet. Immediately after the accident it was discovered that a limb was broken off the birch tree and was lying beneath the wire ‘so it appears that the limb was what knocked the wire off the pole.’ This limb was about 6 inches thick and weighed about 60 pounds. Plaintiff's testimony relative to the condition of the limb and tree immediately after the accident was given by his father and is as follows:
* * *
On the day of the accident a severe rain and windstorm had been raging from 6 or 7 o'clock in the morning until the time of the accident, which was around 4 o'clock in the afternoon.
The record discloses that the first notice or knowledge that defendant had that there was trouble with its line was a telephone message from plaintiff's father immediately after the accident, and that the city electrician, Mr. Lindquist, with two employees went at once to the scene of the accident and made the necessary repairs.
Mr. Lindquist testified to seeing the birch tree in question and the limb that was broken therefrom and which evidently caused the wire to break, fall or sag. He said the limb was decayed; that there was nothing on the outside to so indicate. That there was nothing about the apperance of the birch tree in question that would indicate to him that it was dead; that if a birch tree was not in leaf when the rest were, he would assume it was dead. It can readily be seen from the foregoing that there was but very little, if any, conflict in the testimony on any material question of fact here involved.
The only reasonable inference that can be drawn from all of the testimony is that the cause of the wire being on the ground, or in suspension about 2 feet therefrom, was that sometime during the day in question, because of the windstorm, the branch from the birch tree described by the witnesses was broken and blown on the defendant's lines. This might have happened several hours or just a few minutes before the plaintiff left the travelled portion of the highway to take hold of the wire he saw suspended about 2 feet above the ground.
At the close of plaintiff's testimony, defendant made a motion for a directed verdict for the reason that plaintiff had failed to show negligence on the part of the defendant that was the proximate cause of the injuries received by him. This motion was denied.
At the close of all of the proof the defendant renewed its motion for a directed verdict of no cause of action, which was also denied.
The case was then submitted to the jury under the following charge of the court on the question of defendant's liability:
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Ray v. Swager
...or anticipated that the act [committed] ... would result in the injury complained of here.") (emphasis added); Weissert v. Escanaba, 298 Mich. 443, 453, 299 N.W. 139 (1941) ("[T]he generally accepted test is that negligence is not the proximate cause of an accident unless, under all the cir......
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Schultz v. Consumers Power Co.
...for damages for personal injuries to the public or to their patrons is governed by the rules of negligence. Weissert v. Escanaba, 298 Mich. 443, 452, 299 N.W. 139 (1941). It is axiomatic that there can be no actionable negligence where there is no legal duty. Duty is a question of "whether ......
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Hall v. State, Michigan Dept. of Highways and Transp.
...511 (1979), and the question of proximate cause is one of fact to be decided at the trial level. Finally, in Weissert v. City of Escanaba, 298 Mich. 443, 452, 299 N.W. 139 (1941), the Supreme Court defined proximate cause as " 'that which in a natural and continuous sequence, unbroken by an......
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Case v. Consumers Power Co.
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