187 Mich. 641 | Mich. | 1915
On the evening of June 3, 1913, plaintiff,
Plaintiff’s counsel insist that the trial court was wrong in this position. They contend that there was no one near the steel when it tipped over, and they further contend that, even though it be admitted that the boys caused the steel to tip over, still they were entitled to take the judgment of the jury on the question as to whether the city was negligent in permitting the steel to remain on the sidewalk in such a precarious position. We have therefore presented the question whether defendant was negligent by omission in permitting 600 pounds of steel, 30 inches in height, to stand on the sidewalk in so nearly an upright position that the ordinary use of the sidewalk would .be liable to tip it over on to pedestrians.
The position of the appellant appears to me to have much force. It is not questioned that the steel was placed on the sidewalk and near the traveled part thereof. Neither is it questioned that it had remained
The duty of municipalities, under section 3441, 1 Comp. Laws, has been commented on by this court as follows:
“It is doubtless true that a municipality, having the control of the highways and the duty of keeping them in repair, must at its peril remove or guard against perils growing out of defects and obstructions within the highway limits.” Temby v. City of Ishpeming, 140 Mich. 146 (103 N. W. 588, 69 L. R. A. 618, 112 Am. St. Rep. 392).
In the course of the discussion of a similar case bjr the Illinois court it was said:
“If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury shall be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” Weick v. Lander, 75 Ill. 93.
See, also, City of Osage City v. Larkin, 40 Kan. 206 (19 Pac. 658, 2 L. R. A. 56, 10 Am. St. Rep. 186).
And if it should be determined by a jury that the public street was not in a reasonably safe condition for public travel by reason of the position of the steel, the city would be liable, even though the acts of the boys concurred with that of defendant’s in causing the injuries. 29 Cyc. p. 496; Detzur v. B. Stroh Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500).
The question as to whether the sidewalk was in a condition reasonably safe and fit for public travel
The judgment is reversed and a new trial ordered.