Plaintiff Larry Joe Bennett was involved in an automobile accident on July 29, 1971 at the intersection of Grand River and Logan in the City of Lansing. Both highways are admitted to be state trunkline highways. These highways are crossed at their intersection by tracks owned by defendant Penn Central Railroad Company. Traffic at the intersection is controlled by an overhead traffic light which is intercon *291 nected with the railroad crossing signals. It is uncontroverted that the City of Lansing agreed that its wholly owned municipal utility, the Board of Water and Light, would undertake the maintenance and repair of the traffic light.
Plaintiffs alleged that one of the causes of the automobile accident was the improper operation of the traffic light caused by a malfunction in the circuitry interconnecting the traffic light and the railroad signals. Plaintiffs alleged that the City of Lansing knew that the traffic light was malfunctioning and that it, through the Board of Water and Light, failed to repair the malfunction or to provide a warning to the motoring public that the light was malfunctioning.
Both the City of Lansing and the Board of Water and Light moved for summary judgment asserting that they were immune from liability by reason of the fact that the State Highway Department had jurisdiction over the highways in question. 1 The trial court granted summary judgment in favor of the City of Lansing and the Board of Water and Light. 2 From that judgment plaintiffs appeal.
The question to be answered is:
Is a municipal corporation immune from liability with respect to injuries resulting from the failure to properly maintain a traiRc control light at the intersection of two state trunkline highways, where said municipal corporation has assumed the obligation to maintain said traffic control light?
This is a question of first impression involving this precise factual situation. While the Supreme
*292
Court has been confronted with similar questions on prior occasions, all of the prior decisions related to the state of the law prior to the enactment of
By
Section 7 of
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”
Since there is no serious dispute that defendant municipal corporation and its wholly owned municipal utility were engaged in the exercise and discharge of a governmental function,
4
the defense of governmental immunity is available to them unless this action falls within one of the legislatively defined exceptions contained in
Section 2 of
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition rea *294 sonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. 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.” (Emphasis supplied.)
It is clear that the general defense of governmental immunity set forth in MCLA 691.1407, supra, is not available to a governmental agency where the injuries arise out of a failure of that governmental agency "to keep any highway under its jurisdiction” in good repair and fit for safe travel. The question thus reduces itself to whether defendants’ failure to repair the traffic control light was a "failure * * * to keep any highway under its jurisdiction in reasonable repair”.
Const 1963, art 5, § 28 provides:
"There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law.”
By constitutional mandate the State Highway Commission was given "jurisdiction and control over all state trunkline highways”. We perceive that the term jurisdiction as used in the statute must logically be read to be coextensive with the same term used in Const 1963, art 5, § 28. Therefore, the state trunkline highways here in question are within the jurisdiction of the State Highway Department and not the municipal corporation. It
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has been held that the provisions of
Plaintiffs’ reliance on
Jones v Ypsilanti, supra,
is misplaced. That case involved a defective sidewalk. Since MCLA 691.1402,
supra,
provides that the state’s duty to repair and maintain extended only to the improved portion of the highway designed for vehicular traffic and specifically excluded sidewalks, the sidewalk, even though running along beside a state trunkline highway, was within the jurisdiction of the municipal corporation. In the present case, however, the traffic control light was within the scope of the state’s responsibility and jurisdiction; this Court having determined, in the words of
Lynes v St Joseph County Road Commission,
"Traffic signals which control the flow of traffic are an integral part of the improved portion of the highway.”
See also
Williams v Department of State Highways,
The trial court properly granted the motion for summary judgment. 6 This, of course, does not leave plaintiffs without a remedy, since they can continue their action against the proper defendant, the State Highway Department. While at first blush it seems odd that the state must answer for *296 the omission of a local unit of government, it must be remembered that if local units of government were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state.
Affirmed. No costs, a public question.
Notes
Plaintiffs also commenced an action in the Court of Claims against the State Highway Department. At the time of the writing of this opinion the action in the Court of Claims was still pending.
Plaintiffs’ action against defendant railroad and the-driver of the other car was, of course, continued.
There can be little question that when maintaining traffic control lights the municipal corporation was engaged in the exercise and discharge of a governmental function. The fact that incidental income might be derived therefrom does not make the activity proprietary in nature. See Johnson v Board of County Road Commissioners, supra.
Since the accident giving rise to this action occurred subsequent to August 1, 1970, the constitutional defect found with respect to MCLA 691.1407,
supra,
in
Maki v East Tawas,
See also Moyer v Wayne County Road Commission, Docket No. 15358, released March 27, 1974.