Mullins v. Wayne County

168 N.W.2d 246, 16 Mich. App. 365

Opinions

T. G. Kavanagh, J.

Footnotes

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*

Plaintiff’s decedent was killed when the car he was driving collided with a barrier at the terminus of Mortenview road in Wayne county. Mortenview road terminated at a dead end where it intersected Brest road. There was no sign or other warning device advising of the termination of Mortenview road.

The plaintiff’s complaint asserted that the defendant board of county road commissioners had a duty to keep and maintain Mortenview road in a reasonably fit and safe condition for public travel. It asserted that defendants Sell had a duty to maintain their property, which adjoined the terminus of Mortenview road, in such a manner as not to constitute a trap or hazard to persons lawfully using Mortenview road. The complaint asserted the defendants Sell breached their duty by erecting an im movable barrier on their property as they did. It asserted defendant board breached its duty by failing to warn against the terminus of Mortenview road and although it knew or should have known of the trap or hazard created by the barrier erected by defendants Sell, it breached its duty by failure to warn against it. The complaint further asserted that the negligence of the defendants was the cause of the injuries plaintiff suffered.¹

The defendant board of county road commissioners moved for summary judgment and the trial court granted it.

After considering the matter carefully we are now convinced the trial court erred even as we erred in our prior decision in Mullins v. Wayne County (1966), 4 Mich App 359.²

I.

The prior decision of our Court would limit the road authority’s obligation under the applicable statute³ to preservation of the status quo. More specifically, if a road lias been),built and goes into* disrepair, the road authority is obliged to repair it. If it becomes obstructed,' the obstruction must be removed without regard to who places it there. If a sign has been erected an'd falls down, it must be replaced. But, says that opinion, that is where''the road authority’s duty ends.

The prior opinion italicized'the words “to keep in reasonable repair” in the quotation of the relevant portion of the applicable statute (see footnote 3 for text of statute). ' That “emphasis supplied” emphasizes the theoretical basis for the Court’s opinion, i.e., there is a duty to keep in reasonable repair —to maintain the status quo — but not a duty to construct or keep the road so that it is “reasonably safe and convenient for public travel”.

Such view was, indeed, once the law in Michigan but it has not been the rule since the enactment of the legislation here under consideration and the construction of that legislation by the Michigan Sq-r preme Court in Joslyn v. City of Detroit (1889), 74 Mich 458,⁴ and Malloy v. Township of Walker (1889), 77 Mich 448 (6 LRA 695). In Joslyn, the Court held that the road authority is liable not only “for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition, reasonably safe and fit for travel”. In Joslyn an obstruction was permitted to continue in the midst of the road without warning lights. In language which should guide us in this case, the Court declared (p 461):

“It [the statute] requires everything to be done by the city necessary to make travel upon its streets reasonably safe. If in so doing it becomes necessary to place signals or other safeguards at given points, or give other proper warning, it is the duty of the city to see that it is done or that the street is closed to travel; and that duty is imposed by the express language of the statute,' and the injury arising from the neglect of such duty to the citizen will make the municipality responsible to the party injured.”

In Malloy the Court carefully reviewed the history of prior decisions, including those to the effect that negligence in the plan of construction, as distinguished from negligence in the execution of the plan, ivas not actionable. It held that such earlier ease law had' been superseded by the enactment of the statutory language then before the Court and now before us.

The .specific allegation of negligence in Malloy shows that' the duty of the road building authority goes beyond the preservation of the status quo, that it does indeed have the affirmative duty to design and construct the road and keep it “reasonably safe and convenient for public travel”.

The specific claim of negligence in Malloy was that the road authority was negligent in not constructing railings or barriers alongside an embankment. The Michigan Supreme Court concluded that it was for a jury to. decide whether railings or barriers were required in the circumstances of the case then at bar. Thus, the Court, ruled that even if the surface of the road was perfectly engineered and constructed, the failure to design the road in a reasonably .safe manner, including the erection of railings and barriers, could be an act of negligence:

“This statute cannot be given a construction that would relieve a township or other municipality, upon which a burden is cast to keep its highways in repair and reasonably safe for travel, from liability by saying that it had adopted a method of construction, and had built.,according to the plan. A municipality cannot construct a dangerous and unsafe road, — one not safe and convenient for public travel, —and shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance therewith. The negligence consists, not in the plan of the work or the manner in which it was done, but in the failure to provide suitable protection against accident after the embankment had been made. The statute is imperative to make a road reasonably, safe, and whether it is in that condition of safety and fit for travel must be a question for the jury, under proper circum stances.” Malloy v. Township of Walker, supra, p 462.

For additional cases holding that the jury may find negligence for failure of the road authority to provide railings or barriers needed to keep the road reasonably safe and convenient for public travel, see Sharp v. Township of Evergreen (1887), 67 Mich 443; Ross v. Township of Ionia (1895), 104 Mich 320, 324; Hannon v. City of Gladstone (1904), 136 Mich 621; Lamb v. Township of Clam Lake (1913), 175 Mich 77; and Carpenter v. Township of Bloomingdale (1924), 227 Mich 355.

Harris v. Township of Clinton (1887), 64 Mich 447, 453, anticipated Malloy in holding that a jury question'was presented as to whether the road authority was negligent in failing “to place any barrier or warning” to prevent persons from driving upon and along a highway embankment which was washed and overflowed with water.' The Court declared :

“It should be remembered that the risk of driving-off the' embankment when obscured by the overflow .óf water was no greater than the risk of driving-off oh a dark night.”

And the risk of driving off the dead-end road in this case of Mullins at 3:10 a.m., the hour of the alleged accident, was.no greater than if it had been overflown with water. A short time before Harris v. Township of Clinton, supra, was decided the Court .observed: -

“I have no doubt that the defects in highways covered by the act of 1879⁵ extend to defects in construction, ’ as well as clefects through omission to repair, and to neglect to keep the public highways in a condition reasonably safe and fit for travel by day or by night; and unless it is so kept, it constitutes a defect in the highway, for which, if injury results, an action will lie.” Carver v. Detroit & Saline Plank Road Co. (1886), 61 Mich 584, 590. (Emphasis supplied.)

That the early and continuing constructions of the statute by the Supreme Court are entitled to be regarded as legislatively approved in the light of the subsequent re-enactments which have not sought to change the applicable language, see McEvoy v. City of Sault Ste. Marie (1904), 136 Mich 172, 182.

Joslyn and McEvoy were recently relied on in Kowalczyk v. Bailey (1967), 379 Mich 568, 571. The Court quoted from McEvoy as follows:

“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 díte diligence to lceep 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 (1889), 74 Mich 458, this Court deliberately adopted the first construction.”

The Kowalc&yk Court referred to the dissenting opinions in Joslyn and McEvoy and observed that “the views of the two dissenters never have prevailed in this Court.”

The principle that emerges is that as part of its duty to construct and keep the road reasonably safe and convenient for public travel the road authority is required to provide such devices at points of especial danger as may be necessary ’to warn the driver where the margins of the roadway end or to prevent his vehicle from leaving the road.

Here the plaintiff alleged the county’s negligence in failing to erect a visible barricade and signs warning that the road was about to terminate. Until the evidence of the plaintiff is heard, no court can decide whether sufficient evidence of causal negligence was introduced to make a question for .the jury on the pleaded issue whether the absence of such barriers and signs is negligence. ,■ ■ ■

The prior opinion ignores completely the statutory requirement that the road be kept reasonably safe and convenient for public travel. According to that opinion it doesn’t make any difference whether the road leads over a cliff or into the Detroit river, whether there are railings or barriers, or whether manifestly dangerous conditions are warned against.

The argument made by the defendant that acceptance of plaintiff’s position would mean “every deviation in the direction or the surface of a road must be subjected to a test by a trier of fact for negligence” assumes, contrary to the law, that every claim, however absurd, must be submitted to the jury. Of course, every deviation in direction or surface will not entitle the suitor to go to the jury. In several cases where it was claimed that railings or barriers were required, the Supreme Court ruled that the plaintiff’s evidentiary showing was inadequate and that a jury would not be permitted to infer negligence from their absence. Canfield v. Township of Gun Plains (1913), 175 Mich 379, 384; Vose v. Township of Richland (1928); 242 Mich 46.

Ours is not a “deviation-in-the-direction-or-surface” case. This is a terminating road case. In all events, whether the evidence of causal negligence in a particular case entitles one to go to the jury is still a question of law for the court. Trial judges and the appellate courts will have no greater difficulty distinguishing an insubstantial case against a road authority than in a myriad of other cases where- courts are required to decide whether the evidence justified jury determination.

In Goodrich v. County of Kalamazoo (1943), 304 Mich 442, the Court distinguished earlier cases on the ground that “in practically all of them the accident resulted from a claimed defect in the traveled portion of the highway, or incident to some proper use of the shoulder.” That language was entirely appropriate in Goodrich where the tree against which the collision occurred “was a perfectly visible object and a warning to the public that at that point the shoulder was available for pertinent uses only to the width of 2-1/2 feet”.

The Goodrich Court, as in Canfield v. Township of Gun Plains, supra, and Vose v. Township of Richland, supra, simply declined to let the question of the defendant’s negligence go to the jury on the facts of the case there presented. In contrast, it is manifest that a reasonable trier of fact would be justified in concluding that a road, such as the road in this case, which abruptly ends without warning, has not been constructed or kept in a reasonably safe manner. Compare Sebert v. City of Alpena (1889), 78 Mich 165, where it was claimed a stump standing “so near the traveled part” of the street was dangerous in the night time. The Court held that:

“The statute applies to defects in construction as well as to neglect to repair when the road is unsafe; * * * dangers surrounding the traveler in the darkness of night are conditions that should be taken into consideration by the authorities whose duty it is to construct and Iceep in repair the roadway.” (Emphasis supplied.)

and that it was a question for the jury whether the city had been negligent.

That the statute applies to “flagrant defects in the method of construction, as well as to neglect in repair”, see Schrader v. City of Port Huron (1895), 106 Mich 173, 175. The trier of fact should be permitted to decide whether the failure to erect a sign or barrier warning that the road was coming to an end was a flagrant defect in construction.

The prior opinion hypothesizes the every-deviation-in-direction-or-surface-of-the-road case. At the other end of the spectrum there is the highway terminating at the edge of a cliff or at the river’s edge without due warning. In such a case could we be heard to say that there was no duty because the empty air or water in which the unfortunate traveler descended to his demise was not part of the traveled portion of the highway?

II.

When Michigan adopted the uniform traffic signal control statute (MCLA § 257.610 [Stat Ann 1960 Rev § 9.2310])',' which authorizes the erection of traffic-control devices in the discretion of the sign-erecting authority, it did not thereby relieve the road authority of the duty imposed over 75 years ago to construct and keep the road reasonably safe and convenient for public travel. See State v. Watson (1968), 7 Ariz App 81 (436 P2d 175).

The argument in O’Hare v. City of Detroit (1960), 362 Mich 19, 23, that the case there before the Court was a particularly strong one because the missing stop sign had once been erected does, not constitute a holding that signs need never be erected in the first instance as part of the duty to keep the road reasonably safe.

It is a well-established principle that repeals by implication are not favored. The prior opinion acknowledges that the uniform traffic signal control statute and the 1909 statute which imposes upon road authorities the duty to keep roads under their jurisdiction in repair and reasonably safe and convenient for public travel are not in pari materia.

The road authority should no more be permitted to use the uniform traffic signal control statute as a shield to its statutory liability for construction of an unsafe road than the road authority in Malloy which unsuccessfully sought to “shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance therewith.” Malloy v. Township of Walker, supra, p 462.

For all the foregoing reasons the judgment of the trial court is reversed and the cause is remanded for trial. Costs to appellant.

R. B. Burns, Fitzgerald, J. H. Gtllis, and Levin, JJ., concurred with T. Gr. Kavanagh, J.

Thomas Giles Kavanash, Justice of the Supreme Court, assigned to sit on the Court of Appeals from February 27, 1969, “until the work assigned has been completed” pursuant to Const 1963, art 6, § 4, and CLS 1961, § 600.225, as amended.

1

The following paragraphs are from the complaint:

“4. That on or about the 27th day of April, 1964, plaintiff [’s] deeedent, Clifford Ray Dutton, was operating his 1958 Oldsmobile convertible, license no. HS 8636 in a southerly direction on Mortenview road near its intersection with Brest road in the township of Taylor, eounty of Wayne, State of Michigan. Mortenview road being at that time a street, highway or thoroughfare maintained and controlled by the board of Wayne eounty road commissioners which said board had a duty to keep and maintain in a reasonably fit and safe condition for publie travel.

“5. That Mortenview road and Brest road in the township of Taylor, eounty of Wayne, State of Michigan both dead end or terminate at their intersection.

“6. That the defendants Clarence Sell and Lois M. Sell are the owners of the property which adjoins Brest road on the south as well as the southerly termination of Mortenview road at its intersection with Brest road.

“7. That the defendants Clarenee Sell and Lois M. Sell have a duty to so maintain their property immediately adjoining Brest road at the southerly terminus of Mortenview road in sueh a fashion as not to constitute a hazard, trap or nuisance to persons lawfully operating motor vehicles on Mortenview or Brest road.

“8. That about 3:10 a.m. on the 27th day of April, 1964, plaintiff’s decedent while lawfully operating his automobile on Mortenview road as aforesaid was unable to ascertain that said Mortenview road came to a dead end at its intersection with Brest road, and as a result of the carelessness and negligence of the defendants failed to come to a stop -or turn at the south end of Mortenview road and as a result thereof, his car collided with a barrier placed by the defendants Sells on their property at the terminus of Mortenview road which said collision caused grave and severe injuries to the plaintiff [’s] deeedent resulting in his death, on the 27th day of April, 1964.

“9. The negligence of the board of Wayne county road commissioners consist of the following:

“(a) Failure to post suitable signs or other warning devices along Mortenview road north of its termination at its intersection with Brest road. “(b) Failure to provide a visible barricade or warning deviee at the termination, of Mortenview road despite the faet that it knew or should have known that defendants Clarence Sell and Lois M. Sell had erected and were maintaining a dangerous, immovable, barricade at the termination of Mortenview which was not clearly visible to motorists under all conditions of light and which was wholly unmarked.

“10. That the negligence of the defendants Clarence Sell and Lois M. Sell consisted of creating and maintaining a condition on their property immediately south of the termination of Mortenview road which, by reason of its character constituted an almost invisible trap to motorists who might not be aware that Mortenview road was terminated at said defendants’ property line which said hazard was calculated by said defendants to do great harm to any motorists who might be confronted by an emergency situation by reason of the termination of Mortenview road.”

2

Our former decision was affirmed by an evenly divided Supreme Court (1968), 380 Mich 151. The order of affirmance was subsequently vacated by the Supreme Court on April 1, 1968, and the case remanded for rehearing en banc by this Court, together with Kuchta v. St. Clair Board of County Road Commissioners (Court of Appeals Docket No. 2,646). See Notices to Subscribers, 380 Mich, Part 4.

3

The statute applicable to this ease is PA 1909, No 283, eh 4, § 21 (MCLA § 224.21 [Stat Ann 1958 Rev § 9.121]), which in relevant part, continuously since enactment (Kowalczyk v. Bailey [1967], 379 Mich 568, 571), has read as follows:

“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all eounty roads, bridges and eulverts that are within their jurisdiction and under their care and control and whieh are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system,”

The “provisions of law” referred to in the second sentence quoted above was a then already enacted statute on which the substance of the first sentence was modeled, as can be seen by a comparison of the first sentence above quoted with the previously enacted legislation :

“It is hereby made the duty of townships, villages,’ cities or corporations to keep in reasonable repair, so, that they shall be reason-, ably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, cross-walks and culverts that are within their ju-.' risdietion, and under their care and control, and which are open tppublic travel * * PA 1887, No 264, § 3 (CL 1897, § 3443). This in turn copied verbatim the relevant language of PA 1885, No 214, § 4. .

. The language of PA 19(?4, No 170, § 2, applicable effective July 1, 3 965, parallels the verbiage in force since 1885. The new language in the 1964 law stating that “the duty of the State and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway' designed- for vehicular travel and shall not include sidewalks, crosswalks or any other. installation outside of the improved portion of, the highway designed 'for vehicular travel,” does not lessen the duty, of the road authority to keep the “improved portion of the highway designed for vehicular travel” in “reasonable repair, and in condition reasonably safe and fit for travel.”

4

The accident in J oslyn occurred in April, 1886 after the effective date (September 19, 1885) of the 1885 aet, which act replaced PA 1879, No 244, § 4. The Joslyn Court construed the 1879 aet which read as did the 1885 and later acts except that the 1885 act changed “good repair” in the 1879 act to “reasonable repair”, and added the word “reasonably” before “safe and convenient for public travel” and struck the words “at all times” appearing after the last-quoted words. The Joslyn Court referred to the 1887 act but apparently was not aware of the 3885 aet. It is clear from the Court’s observations in Joslyn that it regarded 'the language of the 1887 act (actually first adopted in 1885) as supportive of the conclusion it reached in that case.

5

See footnote 3.