Hunter v. Village of Ithaca

105 N.W. 9, 141 Mich. 539, 1905 Mich. LEXIS 828

• Court: Michigan Supreme Court
• Decided: October 31, 1905
• Docket: Docket No. 42
• Status: Published

Opinions

Montgomery, J.

The plaintiff sued for damages for injuries sustained by her husband which are claimed to have caused his death. Plaintiff recovered, and defendant brings error. The decedent, while walking with his son on South street in the defendant village, was tripped and thrown forward by one end of a loose plank. The son stepped on the plank near the end, and it appears that the stringers were defective and decayed, causing the plank to become loosened and fly up. It also appears that the stringers were originally so placed as to leave 12 to 14 inches of the planks overhanging on one side of the walk. Complaint is made of rulings admitting testimony as to the condition of the walk at points on the same block and near to the place of injury. Complaint is also made of rulings as to notice of the defect, and of the instructions upon that subject.

The undisputed testimony showed that the village street commissioner had his attention called by a member of the common council to the sidewalk on South street. This was shortly before the accident. He walked over the entire length of it, and directed repairs to be made, but did not discover the defect in question. He employed one Wood to make these repairs, instructing him to fix the sidewalk on the north side of South street between Pine River street and Elm street, to find out what was defective and fix it. The inspection made by the street commissioner was by walking over the walk, and that made by Wood was made in the same manner. Neither discovered the defects. We have no doubt that, as bearing upon the question of notice, it was competent to show the condition of this walk through the block, particularly as it was to this walk as an entirety that the attention of both the street commissioner and his workman was called. Strudgeon v. Village of Sand Beach, 107 Mich. 496, and cases cited; Will v. Village of Mendon, 108 Mich. 251.

The instruction upon the subject of notice was as follows :

“Now, in connection with that, the defendant has asked me to charge, and I do charge you, respecting ordinary sidewalks, such as the one in question in this case — ■ I charge you that there is no duty on the part of the defendant to make an inspection of the substructure, in the absence of actual notice. Municipalities are only liable for such defects in sidewalks as are apparent or are suggested by appearances, or which are disclosed by a test in the nature of the ordinary use of such walks.”

This instruction was given at the request of defendant. The court added on his own motion the following:

“I would explain in that connection_by ‘ordinary use of such walk,’ or by the use of the words ‘ in the nature of the ordinary use of such walks,’ is not meant such as a person walking over the walk with no regard for the walk would have, but such as a person going over the walk in the ordinary way that people go over walks, at the time being mindful of its condition, and having particularly in mind the duty of ascertaining the condition of the walk with reference to whether it was safe and fit for public travel. If they made that kind of an inspection, they would have discharged their duty, even though they might have failed to have found the loose board. And if the board at that time, you should find from the evidence, was insecure, and, as I said before, in a condition so it was not safe and fit for public travel, then the village would not be liable in this case.”

We think this was a very proper modification of defendant’s request to make it applicable to the case in hand. It is to be kept in mind that the commissioner had been notified that a strip of walk, including that in which the defect causing decedent’s injury was located, was defective. If the casual examination of an officer’s passing over the walk would be sufficient in ordinary cases, it does not follow that it would be due care in such circumstances.

An examination of the cases discloses that a distinction has often been noted between cases in which there was a mere neglect of the authorities to ascertain a condition, unaccompanied by any circumstances which should have given rise to a suspicion' of danger calling for investigation, and cases in which such circumstances exist. This distinction is pointed out by Mr. Justice Hooker in Thomas v. city of Flint, 123 Mich., at page 37 (47 L. R. A. 499). See, also, Township of Medina v. Perkins, 48 Mich. 67, and Randall v. Township of Southfield, 116 Mich. 501. And note the limitations placed on the latter case by Mr. Justice Hooker in Thomas v. City of Flint, at pages 29 and 30. There may be notice to the authorities which, not amounting to exact notice of the defect, is yet such as should put a prudent man on inquiry, and of itself create a duty to examine. Thomas v. City of Flint, at page 27. This being so, it follows that the care in making an examination required is such as a prudent man, having such notice, would exercise under the circumstances, and it cannot be said as matter of law that merely walking over the sidewalk in a casual way is such care.

It is urged that this instruction as given imports that there is a duty of inspection, and that it conflicts with the rule laid down by the court in Thomas v. City of Flint, supra. The case of Thomas v. City of Flint does not hold that there may not be a duty of inspection in some circumstances. On the contrary, as pointed out above, the duty to inspect may arise when the officials have actual notice of conditions which call for inspection. We think the testimony as to examination of the walk, tests made two and three months after the injury, was not too remote.

Error is assigned upon a ruling admitting a question to Dr. Porter, stating hypothetically the circumstances of the injury to the deceased, and asking whether an injury such as the witness discovered, produced in this manner, could cause an injury to the medulla. This question was objected to on two grounds, first, because it did not call for a statement that such an injury would be likely to cause such results; and, second, because it permitted the doctor to use knowledge of the patient’s condition not embodied in the question. The first objection went rather to the weight of the testimony than its admissibility. The latter would, under Fuller v. Mayor, etc., of Jackson, 93 Mich. 301, be entitled to weight, were we not satisfied that the opinion of the doctor was based upon conditions discovered by him and previously fully detailed to the jury.

We think there was a case for the jury.

Judgment affirmed.

Carpenter, McAlvay, and Ostrander, JJ., concurred with Montgomery, J.