Burrell v. City of Greenville

133 Mich. 235 | Mich. | 1903

Grant’, J.

(after stating the facts). 1. Counsel for defendant concede that, if the walk had not been slippery, plaintiff would have passed the hole without accident. This concession disposes of the contributory negligence of the plaintiff. The walk was constructed for her use. It was not negligence for her to walk upon it. The plank where she stepped was strong enough to support her. It was not negligence, therefore, for her to step there.

2. The slipping of plaintiff cannot be held to have been the proximate cause of the accident. Old and worn sidewalks become slippery when wet. Some sidewalks must necessarily incline more or less. Under such circumstances pedestrians, especially those who are old and feeble, are apt to slip. The statutory provision that sidewalks must be kept in a reasonably safe condition for travel, and which gives damages for a violation of the provision, does not cover alone cases where the traveler has stepped directly into the hole or defect, but where, in the exercise of ordinary diligence, he has stepped near it, and, without fault on his part, has slipped into it. The case is directly within the principle of the following authorities: Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642).

Counsel for the defendant insist that the case is within Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014). The roadbed in that case was good; the only negligence charged was its narrowness, and the neglect to place railings or barriers. The horse took fright at a log at the side of the road, and the driver struck him with the whip. These acts were held to be the proximate cause of the injury. In consequence of the fright of the horse, for which the defendant was in no sense liable, and the striking of the horse with the whip, the horse ran outside of the usually traveled portion of the highway. That case has no application to that where a traveler slips into a hole in the highway or sidewalk, while stepping where the law gives him the right to step.

Judgment affirmed.

The other Justices concurred.