McEvoy v. City of Sault Ste. Marie

98 N.W. 1006, 136 Mich. 172, 1904 Mich. LEXIS 674

• Court: Michigan Supreme Court
• Decided: March 23, 1904
• Docket: Docket No. 144
• Status: Published

Opinions

Carpenter, J.

December 24,1901, while plaintiff was driving on Elizabeth street, in said city, his cutter came in contact with certain stones therein, and plaintiff was thrown heavily to the ground and injured. These stones, amounting to two or three cords, were placed in the street about the middle of the preceding August by one Frank E. Swift, who was building a house at this point. During all this time they were left without a light or other guard to indicate their presence. 'The mayor of the city lived on an adjacent lot, and passed said stones daily. In the month of September the general superintendent of the streets of the city had observed the stones, and had directed the contractors to remove some obstructions on the sidewalk. An ordinance of the city gave the mayor or common council authority to permit the placing of building material in the street." There was no proof that express permission to place these stones where they were had ever been given under this ordinance.

At the time the plaintiff was injured, one William H. King, who was riding with him, was driving the horse. Said King was in the habit of driving on Elizabeth street when the stones were first placed there, and had ceased to drive there on that account. He had not driven there afterwards until the time of the injury. At that time he supposed the stones had all been removed. From the time he ceased driving until the time of the injury he had passed the place daily, walking on the sidewalk, but had not observed the stones.

Within 60 days after his injury, plaintiff served a notice upon the common council of said defendant, and on the 22d of February served a notice on defendant’s comptroller. The trial court directed a verdict for defendant on the ground that it was not liable, under the statute, for failure to remove these stones. The principal question raised on this appeal relates to the correctness of ’this decision.

1. In considering this case, we are not embarrassed by the vexed question of constructive notice. There was actual notice of this obstruction to the superintendent of defendant’s streets. This was notice to defendant. Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Moore v. Township of Kenockee, 75 Mich. 332 (42 N. W. 944, 4 L. R. A. 555). We are confronted with the question, not of the duty of the municipality to discover obstructions placed in its streets by a wrong-doer, but of the duty of thé municipality to remove obstructions to travel after knowledge of their existence.

It is clear that, under the principles of the common law, defendant is not liable for plaintiff’s injuries. See City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). Is it liable under the statute ? The first statute making municipalities liable for injuries to persons upon the highways was passed in 1879. See Pub. Acts 1879, Act No. 244. That statute has been superseded by , another (see Act No. 264, Pub. Acts 1887), which governs this case. These two acts, viz., that of 1879 and that of 1887, so far as the language applicable to this case is concerned, are the same. If defendant is liable under the act of 1879, its liability under the act of 1887 is clear. I first propose, therefore, to consider the question of whether, under the act of 1879, a municipality is liable for such an injury as that received by plaintiff.

Section 1 of the act (see 1 How. Stat. § 1442) made municipalities liable for bodily injuries sustained “by reason of neglect to keep public highways * * * in good repair, and in a condition reasonably safe and fit for travel.” Section 2 made municipalities liable for damages to property by reason of neglect ‘' to keep in repair any public highway,” and contained the provision that, “in-all actions brought under this act, it must be shown that ” the municipality “had reasonable time and opportunity, after such highways * * * became unsafe or unfit for'travel, to put the same in the proper condition for use.” Section 4 made it the duty of municipalities “to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts.” The title of the act was “An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks, and culverts.”

This act was open to two constructions, — one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich. 458 (42 N. W. 50), this court deliberately adopted the first construction. The facts in that case were very similar to those in the case at bar, and were these: On the evening of April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to be used for building purposes. It had been there a month or more, during which time it had not been guarded, nor had signals of warning been placed upon it. There was no evidence, as was pointed out in the brief of defendant, that the defendant city permitted it to be placed in the street. The issue raised by these facts required the court to determine whether municipalities were responsible for negligent failure to remove obstructions placed in the streets by third persons, and this court deliberately determined that the statute created that obligation. Justice Campbell, who took part in that decision, wrote a vigorous dissenting opinion. If we follow that decision, it is decisive of the question now under consideration, and compels us to say that the learned trial judge erred in denying liability. Various reasons are urged why we should not follow that decision.

It is said that the decision was wrong. If this is true,— which I cannot admit, — it was certainly not an unreasonable construction of the statute. It did no more than give effect to the language of the first section, which gives a cause of action for bodily injuries resulting from neglect to keep a street “in a condition reasonably safe alid fit for travel. ”, I cannot agree to the proposition that injuries resulting from obstructions which the municipality negligently permitted to remain in the streets is not one of the mischiefs intended to be remedied by this statute. It is true that in such a case the injured party has a doubtful remedy against the person primarily responsible for the obstruction. But when we consider the difficulty oftentimes of ascertaining who that person is, and his general lack of financial means, as doubtless the legislature did,, this is a remedy of very doubtful value. If the wrongdoer, instead of putting the obstruction in the street, had made an excavation thereifi, the liability of the municipality, after knowledge or notice, is clear. If the latter instance is within the mischief of the statute, why is not the former ? The municipality is equally negligent in both cases, and in each case the party primarily responsible is an independent wrong-doer. Suppose the wrongdoer, in making the excavation in the street, had heaped the material up alongside. In that case the municipality would be responsible for permitting the excavation to remain, but would be under no legal obligation to remove the obstruction. If a pedestrian should encounter the obstruction and fall into the excavation, I do not know how, under the opposing theory, the case would be determined.

Nor am I able to see that the construction of the statute in the Joslyn Case, contended for in this opinion, leads to injustice. The decision does not require a municipality to follow every person in its streets, and see that he does not leave an obstruction therein. It only requires it to remove the obstructions of which it has, in the language of the statute (section 3442, 1 Comp. Laws), knowledge or notice.

The most that can be made of the objections against Joslyn v. City of Detroit is that the court there adopted the less reasonable of two opposing constructions of a statute. If this is true, — which, except for the purpose of this opinion, I should not admit, — it does not furnish a sufficient reason for overruling that case. Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it. I can see how injury may result from overruling Joslyn v. City of Detroit. We make the law uncertain to individuals and to municipalities who for 15 years have relied upon that decision. Can we expect those who follow us to have more respect for this decision than we evinced for that ? Will litigants and members of the bar have confidence that this court, as at present or as hereafter constituted, will feel itself bound by this decision ? This condition of uncertainty is an evil which works serious injury. In his dissenting opinion in the Joslyn Case, Justice Campbell said:

“ It is hardly necessary to resort to further reasoning on the subject, unless we are prepared to hold that our own decisions do not bind us as precedents. If we do not follow them, it is of very little consequence what we decide.”

I have pointed out some of the injuries which will result from overruling Joslyn v. City of Detroit. What good is there to offset this injury ? At most, this: We place a more harmonious and more reasonable, but not a juster, construction on the statute. I think argument is unnecessary to prove that more injury will result from overruling than from following Joslyn v. City of Detroit.

It is said that Joslyn v. City of Detroit is inconsistent with former decisions of this court. Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383); McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357); McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. 313, 55 Am. Rep. 687). In McArthur v. City of Saginaw, supra, Chief Justice Morse wrote a separate concurring opinion, in which he foreshadowed the decision announced in Joslyn v. City of Detroit, and in which he undertook to reconcile views in harmony with those subsequently announced in Joslyn v. City of Detroit with the decision in that Gase, and with the decision in Agnew v. City of Corunna. It is a part of the duty which I undertake in this opinion to reconcile the decision in McKellar v. City of Detroit with the Joslyn Case.

If Joslyn v. City of Detroit is inconsistent with the former decisions, it is pone the less binding upon us. Three of the four judges who decided Agnew v. City of Corunna, and all the judges who decided the other cases, participated in deciding Joslyn v. City of Detroit. Respect for these judges, then, who participated in these earlier decisions, should impel us not to follow, but to disregard, them.

It is said that Joslyn v. City of Detroit is inconsistent with later decisions of this court (Hutchinson v. City of Ypsilanti, 103 Mich. 12 [61 N. W. 279] ; Gavett v. City of Jackson, 109 Mich. 408, 414 [67 N. W. 517, 32 L. R. A. 861]), in which it was held that, under the statute in question, the city was not responsible for accumulations of snow and ice. These cases follow the case of McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am.Rep. 357), heretofore referred to. I cannot agree that McKellar v. City of Detroit is inconsistent with Joslyn v. City of Detroit. McKellar v. City of Detroit does not proceed upon the view that there is no obligation on the part of a municipality to remove obstructions of any kind. I quote from that case:

‘ ‘ The natural meaning of the act, both in the title and in the body-, is to create liability only for having ways out of repair, and defective on that account. Several authorities treat the class of obstructions in question as involving want of repair and defects. But in the absence of statutes which provide for them as such, it is not a natural construction, and the cases are more consistent which deal with these things as acts of negligence at common law. A great deal, however, may fairly depend on local usage in determining duties concerning highways in winter. "Where it is customary to treat the removal of snow and ice as a regular part of highway management, the failure to look after it may be properly regarded as wrongful and negligent.”

The court then proceeds, for two pages, to prove, not that there is no obligation on the part of a municipality to remove obstructions of any kind, but to prove that there is no su,ch obligation to remove snow and ice. It is argued in the opinion that this obligation generally rests, not upon the municipalities, but upon the owners of the abutting property, and that :

“It would be a great hardship, and involve ruinous expense, if all of the multitudinous ways that are subject to be affected by winter storms are to be constantly watched and diligently kept in thoroughly good condition. * * * No amount of diligence can supply an adequate force and adequate means to detect the inevitable accumulations of snow trampled into hardness on every cross-walk or in every roadway. ”

And the opinion concludes:

“It is possible that some legal duty ought to exist for clearing off such ridges as they are raised by the feet of passengers; but to provide for it by means which will be reasonable, and not oppressive on the many towns and municipalities throughout the State, will be a task of some difficulty. We are satisfied no such liability has thus far been provided for.”

In Hutchinson v. City of Ypsilanti, 103 Mich. 12 (61 N. W. 279), Chief Justice McGrath wrote a concurring opinion, in which he favored the overruling of Joslyn v. City of Detroit; and it is a very significant circumstance that none of his associates signed it. They contented themselves with reaffirming the decision of McKellar v. City of Detroit.

I conclude, therefore, that the line of cases now under discussion, holding that a municipality is not responsible for failure to remove snow and ice, is not inconsistent with the decision in Joslyn v. City of Detroit. The obligation of a municipality to keep a street in a condition reasonably safe and fit- for public travel does not require it to do what, in the language of this court, no amount of diligence ” can do.

I do not think we can sustain the decision of Hayes v. City of West Bay City, 91 Mich. 418 (51 N. W. 1067), except upon the principles of Joslyn v. City of Detroit. In that case, plaintiff was injured by colliding with a building being moved through the streets of defendant municipality. The building was being moved by a third person under a license from the municipality, which directed that it should be moved under the supervision of the city marshal. Defendant was held liable. I think the fact that the city gave the above license constitutes the sole distinction between the Hayes Case and the Joslyn Case. I think it clear, however, that this license did not make the city liable for plaintiff’s injuries, according to common-law principles. See Fisher v. Thirkell, 21 Mich. 1 (4 Am. Rep. 422). Indeed, if there ever was any common-law liability in such cases, it was abrogated in 1887. See 1 Comp. Laws, § 3445. The liability of the city for injuries resulting from obstructions, whether created by or despite municipal license, depends, therefore, upon the statute. This was recognized in the Hayes Case. We quote from that opinion:

“It is contended by the city that the right of action relied upon against the defendants La France is based purely upon a common-law liability, while that against the city is purely statutory, and that a statutory action cannot be joined with one at common law in this manner. We do not consider this question important, as the case against the defendants La France was withdrawn by the court from the jury at the close of the plaintiff’s evidence, and thereafter the plaintiff proceeded against the city alone. The declaration was sufficient as against the city without counting upon the statute, as it contained all the necessary averments to bring the case within the statute.”

There is nothing in the statute which enables us to say that a municipality is liable for obstructions which it permits to be placed in the street, and that it is not liable for other obstructions of which it had knowledge or notice. If it is liable for obstructions which it permits to be placed there, it is liable because it has knowledge or notice of such obstructions (see section 3442, 1 Comp. Laws); and we would read into the statute what the legislature never placed in it, if we discriminate between such obstructions and other obstructions of which it has knowledge or notice.

It is true that this court in Hutchinson v. City of Ypsilanti, and in Monje v. City of Grand Rapids, 122 Mich. 649 (81 N. W. 574), and Justice Hooker in his concurring opinion in Gavett v. City of Jackson, indicated that the Hayes Case and the Joslyn Case were based upon the principle that the city was an active agent in causing the danger. This certainly was not true of the Joslyn Case. I do not think it was true of the Hayes Case. I do not think that the mere municipal permission to move a building through a street, under the supervision of the city marshal, makes the municipality an active agent in the resulting injury. Even if it does, its liability depends upon the statute, and there is no ground, as I have already pointed out, for distinguishing such cases from the case now before us.

I have already alluded to the circumstance that this case arose, not under the act of 1879, but under the act of 1887. The act of 1887 repealed the act of 1879, and practically re-enacted it. The main change was to extend the liability to injuries resulting from defective sidewalks, and to change the language respecting knowledge and notice to the municipality. When this legislation was enacted, Joslyn v. City of Detroit¹ had determined the construction of the act of 1879. If some other State had adopted this legislation, it would be held to have adopted it with that construction. Is it not clear that this same reasoning compels us to say that our legislature, in enacting this legislation, adopted the construction placed upon it in Joslyn v. City of Detroit ?

I conclude, therefore, that it is our duty to recognize. Joslyn v. City of Detroit as an authoritative construction of the statute creating municipal liability.

2. It is urged that the judgment of the lower court should be affirmed on the ground that Mr. King was guilty of contributory negligence, and that his negligence is to be imputed to the plaintiff. I do not think, under the facts stated in the record, and heretofore set forth in this opinion, that we can say, as a matter of law, that Mr. King was guilty of contributory negligence.

3. It is urged, also, that the judgment should be affirmed on the ground that plaintiff did not serve notice of his injuries on defendant’s comptroller within 60 days, and that his cause of action was therefore barred. Section 18 of chapter 6, Act No. 468, of the Local Acts of 1901, required plaintiff, “within 60 days next after such injury, to present such claim to the comptroller of said city, in writing and under oath.” It is contended by the defendant that, in computing this 60 days, the day of plaintiff’s injury is to be counted. Under this construction, plaintiff did not present his claim to the comptroller until the 61st day after his injury. We do not think this construction proper. We think he had 60 days after the day of his injury (Gorham v. Wing, 10 Mich., at pages 495, 496; Warren v. Slade, 23 Mich. 1 [9 Am. Rep. 70]j, and therefore the claim was presented within the statutory time.

I think, therefore, that the judgment of the lower court should be reversed, and a new trial granted.

Moore, C. J., Montgomery and Hooker, JJ., concurred with Carpenter, J.

1 Decided April 19, 1889.