166 Mich. 597 | Mich. | 1911
Lead Opinion
This suit was brought by plaintiff against defendant to recover damages by reason of personal injuries claimed to have been caused by the negligence of defendant. The facts are that plaintiff, who resided at 121 Alfred street, at the corner of Brush street, in Detroit, on January 26,1909, in company with another woman, was walking along the sidewalk on the north side of Alfred street, going east toward Brush street, to take a Beaubien street car. It was between 7 and 8 o’clock in the evening, and dark. There was a light on the corner of Alfred and Brush streets. Plaintiff was walking on the inside of the walk and claims that she caught her foot under an obstruction in the walk which caused her to fall heavily upon her hand, injuring it and her arm severely. She did not know what it was she
Error is assigned to the following portion of the charge of the court in submitting this question to the jury:
“ In this State our Supreme Court in construing this statute in more than one case has held that unless the obstruction complained of exists two inches in height or depression (in this case it is height), that unless it exists to that amount, the sidewalk is in a condition of repair reasonably safe and fit for travel. If it does exist two inches, then it is a question for the jury, in the light of all the circumstances, to ascertain and determine whether or not the sidewalk is in a condition of repair reasonably safe and fit for travel. But if the obstruction is two inches or less then there is no dereliction of duty on the part of the city.”
There is no ambiguity in the last sentence of the paragraph quoted. It is the conclusion of the statement evidently to make clear what preceded; the court saying:
“But, if the obstruction is two inches or less, then there is no dereliction of duty.”
“ If it does exceed two inches, then it is a question for the jury,” etc.
It is evident from the context that this is what the court intended to say. Whether the mistake was his or that of the stenographer in transcribing is immaterial. The meaning of the paragraph as printed is not obscure. The confusion in it claimed by appellant evidently was not apparent to the jury, as no explanation of its meaning was asked. The charge as given will not warrant the construction claimed.
Appellant further complains that the court was in error in charging the jury that they should be governed by fixed measurements in determining the liability of defendant. In Northrup v. City of Pontiac, 159 Mich. 250 (123 N. W. 1107), where many cases are cited, the court said:
‘ ‘A careful examination of all of them leads to the conclusion that the court has held,’as a matter of law, that an inequality of two inches or less in a sidewalk does not render it not reasonably safe for public travel.”
The trial court was following the words above quoted used by this court. That case was where plaintiff caught his toe under the flange of a grating which projected above the sidewalk If inches, and is controlling in the instant case. We find no error in the charge.
Appellant contends that the court erred in permitting the plumber and his helper to describe the condition of this water box eight weeks after the accident. No objection was made to this testimony at the time, nor was any exception taken. This court cannot consider an objection not brought to the attention of the trial court.
The judgment of the circuit court is affirmed.
Dissenting Opinion
(dissenting). I am unable to distinguish this case and Northrup v. City of Pontiac, 159 Mich. 250 (123 N. W. 1107). But I am of opinion that the nature and character of an obstruction, whatever its height, may be considered in determining whether a way is in a condition making it reasonably safe for public travel. I think the obstruction in this case was of such a character that the negligence of the defendant became a question for the jury.