120 Mich. 323 | Mich. | 1899
Lead Opinion
The plaintiff recovered a judgment against defendant for personal injuries received by her, occasioned by being precipitated from a highway bridge into the creek below. The assignments of error all relate to the charge of the court, or to his refusal to give certain requests proffered on the part of the defendant.
The record shows that the creek on which the bridge was constructed ran through what had been a cedar swamp. The bridge was planked with two thicknesses of plank. The lower plank were 14 feet long, and the upper, 12 feet long. The bridge constituted 8 or 10 feet of the highway. North of the bridge was a hill, the foot of which was about 10 rods away. South of the bridge was another hill. The bridge itself was about 3J feet above the water. The roadway from the base of one hill to the other was originally constructed by placing logs across the roadway, and filling upon top of them with dirt. The roadway was elevated some feet above the swamp, and was 11 or 12 feet wide. There was no railing upon the bridge itself nor upon its approaches.
It is the claim of plaintiff that upon August 7, 1897, she
The defendant asked the court to take the case from the jury “for the reason that plaintiff’s own negligence contributed to her injury, in that she drove the horse down the hill upon the bridge on a trot, in a reckless manner, and before she reached the bottom of the hill the horse was beyond her control, and consequently the injury resulted.” It is said in the brief that, as the horse pro
.“It was the duty of the plaintiff, as a matter of law, to provide herself with a reasonably safe conveyance when going upon the public highway, and that she should have a reasonably gentle and safe horse, and the duty was upon her to exercise reasonable care and prudence in driving along this highway and over this bridge; and, if she failed or neglected to observe any of these precautions, she is, in law, guilty of what is known as ‘contributory negligence,’ and she cannot recover in this case. ‘ Contributory negligence ’ means that by her own carelessness or negligence she has contributed to her own injury. And, if she has done that, under the law she is not entitled to recover at all, as you cannot apportion the negligence.
“Now, the mere fact that the plaintiff might have seen this hole in the board when she drove over it in the forenoon of that day would not, of itself, constitute her guilty of contributory negligence in endeavoring to pass over that bridge again that evening. You have a right to consider the fact, to say whether, under the evidence, a reasonably careful and prudent person would have endeavored to*327 cross that bridge, as she did, in the evening, knowing of the existence of the hole (if you find there was one, and she knew of its existence). And if you find that a reasonably careful and prudent person would not, having the knowledge she had, have offered to pass over that bridge, as she did on her return, then that would, amount to contributory negligence on her part. Having a knowledge (if you find she had) of the fact that there was a hole in the bridge, then it became incumbent upon her to exercise more care and caution in crossing the bridge the second time than she would have otherwise been called upon to do. In other words, if she knew there was some danger in crossing the bridge,- — if she realized that, — with the hole in it, then she would be expected to exercise care and caution proportionate to the risk she ran.”
We do not think the defendant can complain of this charge. Bouga v. Township of Weare, 109 Mich. 520; Whoram v. Township of Argentine, 112 Mich. 20; Schwingschlegl v. City of Monroe, 113 Mich. 683, and cases cited there.
It is also claimed that the court erred in submitting to the jury the question whether the township was guilty of negligence in failing to provide railings to the bridge. It is said there was no dispute about the size of the bridge and the width of the stream, and the court ought to have said, as a matter of law, that the township was under no obligations to provide railings. That portion of the charge reads as follows:
“Now, the defendant in this case denies that the bridge was in the defective condition claimed by the plaintiff. It is admitted that there were no railings on the sides of this bridge. And I leave it to you, as a matter of fact, to say whether or not — when you consider the manner in which this bridge was constructed, its height above the water course, the condition of the road, and the entire surroundings —it was the duty of the defendant township •to have constructed a railing along the sides of the bridge. That only becomes important for you to consider if you determine that the absence of the railing was in any manner the cause of the injuries which she sustained, and that these injuries were not caused by her own contributory negligence. ”
“ The defendant claims that the accident was not caused by reason of her horse shying at a hole in- the bridge, but that in some way she lost control of the horse on its way down the hill; and they claim that the horse or carriage had been — partly, at least — out of the regularly-traveled highway for some distance before it reached the bridge, and that the front wheel of the carriage struck the corner of the bridge, and tipped it and her over into the creek. Now, if you find that that is true, — if you find that the accident in this case was not caused in any way by the condition of the bridge, that the horse didn’t become frightened at a hole in the bridge, — then the plaintiff in this case cannot recover. * * * Now, I will call your attention more particularly to some of the questions of fact which you must determine in this case. First, perhaps, would be, as suggested by counsel, Was the bridge reasonably safe and fit for public travel ? If you find that it was, you should not discuss any other subject or question in this matter, because that would then put an end to plaintiff’s case. If that bridge was reasonably safe and fit for public’travel at the time she attempted to pass over it on her way going south that day, then the plaintiff cannot recover in this case.”
The same statement was made to the jury in other portions of the charge. It is quite apparent that the juiy must have understood that, before a verdict could be returned in favor of plaintiff, they must find the accident resulted from the defective bridge. The defendant denied that the bridge was defective. This raised a question for the jury, and not for the court. Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842); Shaw v. Township of Saline, 113 Mich. 342; Perkins v. Township of Delaware, Id. 377. If the jury believed the testimony offered on the part of the plaintiff, there was an abundance of testimony upon which to base the finding.
The court failed to give some of the defendant’s requests to charge. This is said to be error.. Some of the requests failed to contain all the essentials which made them proper
Judgment is affirmed.
Concurrence Opinion
I concur in sustaining the judgment in this cause. An examination of the record has convinced me that the case was fairly presented to the jury, and that there is no occasion for us to reverse the case for certain expressions used by the court in his instructions, which, standing alone, might be reversible error. While the court in one part of his charge recognized the failure to erect railings as a ground of negligence, he immediately followed the instruction by saying, “If you find that the horse did not become frightened at a hole in the bridge, the plaintiff cannot recover.”
Counsel for defendant have argued very strenuously that the court permitted the jury to base their verdict upon a finding that the highway commissioner had actual knowledge of this defect, while in fact there was no evidence of any súch knowledge. This claim is based upon the following instruction:
“Now, I say to you, as a matter of law, that if the hole was made there on Thursday, only two days before the accident occurred, that the plaintiff in this case could not recover without showing that the township, through its officials, had notice of the fact that there was a hole there in the bridge, and that, after receiving such notice, they had a reasonable time (the officers) to repair the defect, and did not do it.”
The court was simply stating a rule of law, and it is evident from the connection that the jury must have so understood it; for the court immediately followed this instruction with one in regard to constructive notice, upon' which alone the jury could have based their verdict.