Richards v. Waltz

117 N.W. 193, 153 Mich. 416, 1908 Mich. LEXIS 1043

• Court: Michigan Supreme Court
• Decided: July 1, 1908
• Docket: Docket No. 103
• Status: Published

Opinions

Hooker, J.

The plaintiff is a resident of the unincorporated village of Twin Lake, which is upon the east shore of a body of water called Twin Lake, and some of the streets of which are said to run to the shore of the lake. He was the owner of some cows. In conformity to his daily practice, he turned these cows and a horse into the highway, about ten o’clock in the forenoon, and paid no further attention to them until about half past twelve, when he heard that one was drowned in the lake at a place where the defendants had made a hole by cutting and removing ice.

The plaintiff testified that he and others had been in the daily habit of opening drinking holes through the ice at the edge of the lake in the village, and he testified that he turned his animals out to water them at the lake about 40 rods from his house. He stated that he knew it to be the habit of people generally to gather ice from this lake every winter, and that parties cut ice every winter at the place where the cow was drowned, and he knew that they were cutting there that winter, though he had not been down there, and he knew it when he let the cow out. The cow was drowned at a point some 80 rods from the premises of the plaintiff. The cow did not go upon the lake at the drinking place, but, as plaintiff stated, left the highway and crossing private property owned by one Duff, about five rods, went upon the lake, and thence four rods further to the place of drowning, which was at least 40 rods distant from the drinking place. He said that at the time he let the cows out he “did not go down to inspect the hole where they were cutting ice, he paid no attention to it.” He did not testify that he supposed barricades were up, or even that he did not understand that they were not up, so far as we can discover from the record.

There are two counts in this declaration, one an ordinary common-law count for negligence, and the other pleading the statutory duty of erecting barricades, etc., i. e., Act No. 221, Pub. Acts 1899. So far as the first count is concerned, if it can be said that the acts of defendants would be negligence in the absence of the statute, which we doubt, the conduct of the plaintiff in turning out his cows, and leaving them to stray where they pleased, amounted to contributory negligence under the rule of the following cases. Robinson v. Railroad Co., 79 Mich. 323; Niemann v. Railroad Co., 80 Mich. 199; Wright v. Railway Co., 12 N. Dak. 159.

It is clear, however, that the defendants failed to perform the statutory duty of erecting barricades, and it is urged that an action for negligence may rest upon that in a proper case, although the act does not expressly provide for it, as some statutes do.

It was entitled:

“An act to compel parties engaged in securing ice to erect suitable danger signals and barricades, designating what officials it shall be the duty of to see that the provisions of this act are complied with,” etc.

“ Section 1. That it shall be the duty of any person or persons who are, or who hereafter may be, engaged in the procuring of ice from any of the streams, ponds or lakes of this State to erect, or cause to be erected, place, or caused to be placed, at or near all places where they shall be cutting ice, suitable danger signals and barricades. Such barricades shall consist of cross bars upon which a pole, rope, chain or rail shall be laid at a height not less than three feet above the ice and shall be placed not less than ten feet from the edge of the opening.

“Sec. 2. It shall be the duty.of the harbor-master at all places where there is such an official having control of a stream or lake within this State, and where there is no such an official having control as aforesaid, it shall be the duty of the supervisor or other assessing officer in whose assessment district such stream or lake is situated, to see that the provisions of section one of this act are complied with.

“Sec. 3. Any person or persons who shall neglect or refuse to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by imprisonment in the county jail not more than three months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment, in the discretion of the court.”

It is apparent from the title and provisions of this act that it did not contemplate an effective barricade against animals, for small animals could easily go under it, and a slight effort would throw it down, and we feel justified in saying that the act was not designed to so change the law of negligence as to impose a liability for animals which should wander upon streams and lakes and be drowned. We are also of the opinion that plaintiff’s contributory negligence is a complete defense. We do not overlook the cases of Flint, etc., R. Co. v. Lull, 28 Mich. 510; Parker v. Railway Co., 98 Mich. 607; and LaFlamme v. Railway Co., 109 Mich. 511, all of which were based upon statutes giving a right of action and which rest upon a reason given by Mr. Justice Cooley in the case of Flint, etc., B. Co. v. Lull, 28 Mich. 514. He also states that if the case had been a common-law action, contributory negligence would be a defense. This distinction is consistent with the authorities cited in the Lull Case.

We do not discuss some other questions raised, as they are not necessary to a decision of the case.

The judgment should be affirmed.

Ostrander,. J.

I think the judgment should be affirmed upon the ground that the statute was not designed to protect, or to prevent injury to, unattended animals.

“It may be stated as a general proposition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause-of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises.” 1 Thompson on Negligence, § 12.

The duty imposed, under penalty, by the statute, Act No. 221, Pub. Acts 1899, upon persons engaged in procuring ice from any of the streams, ponds, or lakes of this State is to erect, or cause to be erected, place or cause to be placed, at or near all places where they shall be cutting ice,

“Suitable danger signals and barricades. Such barricades shall consist of cross bars upon which a pole, rope, chain or rail shall be laid at a height not less than three feet above the ice and shall be placed not less than ten feet from the edge of the opening.”

The legislature has not indicated the danger signal which will be “suitable.” It is not easy to describe or even to imagine one which would deter cattle, turned out in the winter to find water for themselves, from going upon the ice of convenient ponds or streams in search of it. It is .reasonably certain that the statute barricade would not prevent the passage of a thirsty animal to water.

Plaintiff turned out his cattle, unattended, to go to the lake for water as they had been accustomed to do. How his cow got into the hole from which ice had been cut does not appear. The testimony warrants the inference that it was in an attempt to drink quite as well as it warrants any other inference of the cause of her drowning. While it was customary for some one to cut holes in the ice each morning, at which cattle might drink, it does not appear that these holes were open on the morning in question. If the purpose of the statute was doubtful, plaintiff, who knew that ice was being harvested at the lake and who may be supposed to have known the character of the statute barricade, has not shown that his conduct was free from negligence.

Grant, C. J., and Blair and Moore, JJ., concurred with Ostrander, J.