Williams v. City of West Bay City

• Decision Date: 21 February 1899
• Citation: 119 Mich. 395,78 N.W. 328
• Court: Michigan Supreme Court
• Parties: WILLIAMS v. CITY OF WEST BAY CITY.

78 N.W. 328

119 Mich. 395

WILLIAMS v. CITY OF WEST BAY CITY.

Supreme Court of Michigan

February 21, 1899

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by Susan Williams against the city of West Bay City. Judgment for plaintiff. Defendant brings error. Reversed.

Lee E Joslyn, for appellant.

John Golden (Van Kleeck & Anneke, of counsel), for appellee.

MOORE J.

The plaintiff recovered judgment against defendant for injuries received by her upon a defective sidewalk. Defendant has appealed to this court, assigning a good many errors. All of them have been considered, but we do not deem it necessary to discuss them all.

It is claimed that the declaration is insufficient. Defendant demurred to the declaration, and, when the demurrer was overruled, did not rest upon the demurrer, but pleaded the general issue, and tried the case upon the merits. We think the declaration was sufficient, after the plea of the general issue, and a trial upon the merits is had. Moody v Shelby Tp., 110 Mich. 396, 68 N.W. 259; Storrs v City of Grand Rapids, 110 Mich. 483, 68 N.W. 258; Snyder v. City of Albion, 113 Mich. 275, 71 N.W 475.

Dr. Tupper, who attended the plaintiff, was allowed to testify to the value of his services. This is said to be error; citing Rogers v. Village of Orion (Mich.) 74 N.W. 463. The record shows plaintiff was a widow, who supported herself, and that she called Dr. Tupper as her physician. Under these circumstances, we think the testimony competent.

Plaintiff claimed that she received her injury on a defective walk. She gave testimony tending to show that a flagstone upon one of the principal streets of defendant city was displaced causing a depression of three or four inches, and that by reason thereof the walk was not reasonably safe and fit for travel. It was the claim of the city that the walk was not defective. Testimony was given in support of each of these contentions. A witness called for the plaintiff testified in part, when the following occurred: "The Court: How long did you know of that stone, or the existence of that defect in the walk, before the accident happened,-before March, 1897? Mr. Joslyn: I want to object to the question of the court in calling it a 'defect in the walk,' and ask for an exception to the question. The Court: I won't give you an exception to the question. I won't allow any exception to the question. Answer the question. A. It was there at least two years, and I think a great deal longer than that. In fact, I believe for four years I have noticed it. Every day seeing it, I cannot state in my mind the time, but I know not less than two years." Counsel for defendant was examining a witness for the plaintiff, when the following occurred: "Q. Suppose that this flagstone is fifteen inches wide; suppose that it extends over the curbstone three inches, and the curbstone is four inches wide; the north end of this piece would be just as much above the flagstone as the south side is below it, would it not? A. No, sir; it would not. The Court: What is the use of asking this question? Your brain seems to be out of order. You take a piece of iron or stone or plank, and put it over a fulcrum in the middle. If you depress one side, you raise the other up just as high, but this lies on top of the curbstone. Mr. Joslyn: I am not asking the question that way. I am asking upon the supposition that it extended three inches beyond the curbstone, and the curbstone was four inches, and that would make seven inches from the north end. The Court: What is the difference? I cannot hold a mathematical...