Whoram v. Argentine Tp.
| Decision Date | 10 March 1897 |
| Court | Michigan Supreme Court |
| Parties | WHORAM v. ARGENTINE TP. |
Error to circuit court, Genesee county; Charles H. Wisner, Judge.
Action by Charles D. Whoram against the township of Argentine for personal injuries caused by a defective highway. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Where a portion of the charge to the jury is open to criticism, but is substantially corrected in a subsequent paragraph, such error is cured.
The declaration is as follows: "Charles D. Whoram, plaintiff in this suit, by Tinker & Frackelton, his attorneys complains of the township of Argentine, a municipal corporation, defendant herein, the said township of Argentine having been duly summoned to answer said plaintiff in a plea of trespass on the case, for that whereas, to wit, the said defendant heretofore and at the time of the committing of the grievance hereinafter mentioned was a municipal corporation to wit, a township, being one of the townships of the county of Genesee, and as said township had control and supervision of the highways in said township, and it was the duty of said township to keep all highways over which it had control in a suitable and proper condition, so that persons in the ordinary course of travel might and could pass over the same in a proper manner, and not receive injury in consequence of the neglect and failure of said township to properly repair and keep in condition said highways in said township. And that heretofore, to wit, on the 29th day of January, A. D 1893, the said township of Argentine, defendant herein, and for more than one year previous thereto, had charge and control of the highways in said township, and had charge and control of a certain portion of the highways situated between the township of Gaines and the township of Argentine, Genesee county, Michigan, being the highway between sections thirty-two and thirty-three (32 and 33) of and in Gaines township, and sections four (4) and five (5) of and in the township of Argentine, aforesaid, being what is known as a 'town-line road,' and that the portion of the road above described was, and had been for many years, and is now in and under the control, supervision, and management entirely of the township of Argentine, and that the same had been set off by the proper officers of the said townships of Gaines and Argentine to the township of Argentine, and they had assumed control of the same, and the care and repair of the same, and that said highway was a public highway for the travel of passengers and people with conveyances over the same, and was a regular laid out highway, and had been for the period of over ten years; and that upon said 29th day of January, 1893, the said plaintiff was riding along said highway between said sections, as above described, on horseback, and while using and exercising due care and caution, without any neglect or fault upon his part, his said horse stepped into a hole on the north side and in the traveled portion of said highway, and between said sections above described, and in consequence of said stepping in said hole said horse, without any fault or neglect on the part of said plaintiff, fell and threw the said plaintiff and fractured his left leg; that said hole in said highway was about eighteen (18) inches deep and one (1) foot across, as near as plaintiff can estimate the same, and was covered over at the time of the accident with a thin coating of ice, and thus preventing plaintiff from seeing and avoiding said hole. And whereas, also, before and at the time of the injury aforesaid, the said township of Argentine was bound to keep said highway in repair, and through the failure of said township and neglect of its officers to keep the same in repair, to wit, the portion of the highway between the township of Gaines and the township of Argentine, county of Genesee, Michigan, being the highway between sections thirty-two (32) and thirty-three (33) of Gaines township, and sections four (4) and five (5) of the township of Argentine on, to wit, the 29th day of January, A. D. 1893, said township had and allowed and permitted a hole to exist and be on the north side of the highway, about eighteen (18) inches deep and one foot across; and on said day, while said plaintiff, in a cautious and proper manner, and without any fault and neglect upon his part, was riding along and over said highway on horseback, his said horse stepped into said hole above described, and was thereby thrown to the ground, and thereby throwing the plaintiff to the ground with great violence and force, and at the time said plaintiff was thrown to the ground, and his left leg was broken below the knee, and he sustained a fracture of the same, but during the said time the said plaintiff was free from any contributory negligence on his part, and had done nothing which would tend to cause said accident to occur; and he thereby suffered and underwent great pain, and was thereby then and there hindered and prevented from performing and transacting the lawful business of the said plaintiff by him to be performed and be transacted, which was a dealer and purchaser of hay, and farming, for a long space of time, to wit, the space of six (6) months, and thereby and in consequence of the premises was compelled to lay out and expend a large sum of money in doctoring and caring for said injuries, to wit, the sum of five hundred dollars ($500), and thereby suffered great pain for said six (6) months, and still does suffer great pain in consequence of said injuries, and is not able at the present time to perform and execute his business by him to be performed in consequence of said injuries, and has become in consequence of said injuries permanently injured, inasmuch as his leg is not, and never will be, sound and free from the effects of the said injury. And also that heretofore, to wit, on the 29th of January, 1893, said plaintiff started from his home to go to the village of Gaines, and in so doing was compelled to pass over the highway established and used for travel on the town line between the townships of Argentine and Gaines, to wit, between sections thirty-two (32) and thirty-three (33), Gaines township, and four (4) and five (5) of the township of Argentine, aforesaid, said highway being under the control and supervision of the township of Argentine; that he started on his journey horseback, and while passing over said highway in an ordinary manner, using due skill and prudence on his part, and riding a well-broken and gentle horse, and riding at a slow rate of speed, said horse stepped into a hole existing and being in the traveled portion of said highway, and, in consequence of stepping into said hole, fell, and by said fall threw the said plaintiff,...
To continue reading
Request your trial