Mechay v. City of Detroit

111 N.W.2d 820, 364 Mich. 576, 1961 Mich. LEXIS 404

• Court: Michigan Supreme Court
• Decided: November 30, 1961
• Docket: Docket 56, Calendar 48,557
• Status: Published

Opinions

Souris, J.

Plaintiff, under contract with defendant city of Detroit, was painting the top of a street light pole when the pole broke, throwing him to the ground. His amended declaration for damages was dismissed on motion and this appeal was taken to review that dismissal.

Plaintiff’s amended declaration contains 3 counts. He alleged, in the first, common-law negligence; in the second, breach of a statutory duty; and in the-third, breach of the common-law duty to maintain a. safe place to work. No claims are made in this appeal by plaintiff with reference to dismissal of his-first or third counts. However, he presents 2 questions, both of which apparently relate to count 2.. By 1 of his questions, he suggests that count 2 sounds in tort for maintenance of a nuisance as to which the defendant municipality is not immune from liability. We find it unnecessary to consider this-question for the reason that count 2 is planted squarely upon defendant’s statutory duty to maintain its public highways, streets, bridges, sidewalks, crosswalks, and culverts in reasonable repair. CL. 1948, § 242.3 (Stat Ann 1958 Rev § 9.593). Onr review, therefore, will be limited to consideration of the applicability of the duty imposed by that statute to street light poles and the availability to plaintiff of the remedy provided by CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591) for breach of that statutory duty.

CL 1948, §242.3 (Stat Ann 1958 Rev § 9.593) provides, in part:

“It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction.”

In Rufner v. City of Traverse City, 296 Mich 204, and Cabana v. City of Hart, 327 Mich 287 (19 ALR 2d 333), we ruled that CL 1948, § 242.3 (Stat Ann 1958 Rev § 9.593), requires cities to maintain in reasonable repair electric street light poles as part of their duty to keep in reasonable repair streets, highways, sidewalks, et cetera, so that they shall be reasonably safe and convenient for public travel. The argument is made by defendant that whether or not street light poles are required to be maintained in repair by that statute, the duty to do so does not extend to anyone except travelers and, since at the time of injury plaintiff was not traveling* 'upon the adjoining street, defendant’s statutory duty did not extend to him.

We disagree. The reference to public travel contained in the statute quoted above is not a restriction upon the persons to whom the duty is owed but, rather, defines the standard by which the duty is measured: “to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel.”

This conclusion is supported by tbe provisions of CLS 1956, §242.1 (Stat Ann 1958 Rev §9.591), which creates the cause of action for breach of the statutory duty:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”

Liability is imposed upon municipalities in favor of “any person or persons” injured by reason of the municipality’s breach of its statutory duty. We have not squarely held that the benefits of this section of the statute are limited only to travelers, nor do we see any ground upon which we should do so now. The opinion in Beaudin v. Bay City, 136 Mich 333 (4 Ann Cas 248, 16 Am Neg Rep 108), reasonably may be construed to suggest that the statutory cause of action is limited only to travelers lawfully upon the street, because it refers to cases outside Michigan which had so construed somewhat similar statutes and because the Court determined that the child plaintiff was entitled to recover so long as he was not unlawfully using the street. To the extent that there is any inference in that case inconsistent with this opinion, it is expressly overruled.

Reversed and remanded. Costs to plaintiff.

Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.