Dewey v. City of Detroit

| Mich. | Apr 16, 1867

Campbell J.

Plaintiff sued the City of Detroit for personal damages, caused by his being tripped up by a loose board in a sidewalk. The injury is said to have occurred by reason of the plank being raised suddenly by a person' stepping upon an end of it, so that Dewey, when passing, caught his foot under it as it was so raised, and was thrown down. The only question presented for review is, whether the circuit judge laid down a proper rule concerning the negligence which would charge the City for the accident. The charge was as follows: “That the City would be liable if they had notice of the defect; that actual notice need not be shown, but might be presumed or inferred, if the defect was open and notorious, or of long standing, and of such a character as would naturally arrest the attention of persons passing it. If the jury found that any city ^officer had actual notice of the defect, or that it was of such a character that notice might be inferred, the city would be liable, unless it should appear that the plaintiff was himself negligent, and by his own neglect contributed to the accident.” In answer to a special request, the court charged “That in the absence of proof of express notice to the defendant of the defect which was the alleged cause of the injuries received by the plaintiff, the plaintiff can. not recover unless the jury finds that such defect was so open and palpable as to be apparent, and necessarily attract the attention of passers by.”

This action is based upon a supposed neglect of duty to repair defects in the city sidewalks. How far this duty lies upon the city depends of course upon its charter, and upon the means provided by that charter to enable it to perform this duty. It can not be liable for neglect, in any case where it is not reasonably capable of acting efficiently; and, on the other hand, it is responsible for reasonable diligence in the performance of any duty which it is capable of performing, so far as the means in its power will enable it to act.

Under the • charter all repairs of sidewalks are required to be made under the supervision of the street commissioners in their respective districts, and under the direction of the Common Council. — Charter, Chap. 4, § 16. There may be one or more commissioners for the city. — Chap. 2, § 2. The nature of their duties would preclude the appointment of any considerable number of these officers, as their functions in supervising various improvements must of necessity give them jurisdiction over different wards, and the ward overseers are subject to their oversight, and must act under their direction — Chap. 2, § 17. It appears from the case that one commissioner is appointed over the entire eastern part of the city, from Woodward Avenue to its eastern limits, except a portion of the Second Ward.

It is very well settled that the discretionary power of determining how many officers are required is one of a legislative character, which can neither be reviewed nor made the basis of complaint against the city. — Griffin v. Mayor of A I 9 A Y. Bop. 456. It must be assumed that there were adequate reasons for fixing the number adopted. And any rule which would hold this officer, and the city through him, for neglect, must have respect to such facilities as he may be fairly supposed to possess, to inform himself of defects in the walks, and to attend to their repair.

It is clear that he can only get knowledge from his own observation, or from information laid before him; and that neither he nor any one else can be expected to ascertain without information the existence of defects which are not apparent to every ordinary observer. The walks in a city of the size of Detroit cover many scores, and probably several hundreds of miles, and unless an injury is such as to be very readily noticed, it would be altogether unlikely to attract attention, or to be reported to him by private parties. ■ That minute daily inspection which is possible and necessary on a line of railroad, where a small break may endanger hundreds of lives, would be absurd and impracticable in relation to sidewalks. A city, responsible as it must be only for the neglect of duties incumbent on its agents, can not be distinguished in its liabilities from individuals who might be entrusted with the same kind of duties. In this case the commissioner may be fairly regarded as representing the corporation. If a defect is found which he ought to have known, and which he has failed to repair within such reasonable time after such knowledge may be presumed to have reached him as under all the circumstances was sufficient to provide for such repairing, then there is a good cause of action, but not otherwise.

The ruling of the court below went far enough to hold the city responsible for any defect which was known to any city officer whatever, whether connected with the street department or not, or which was generally known, or which was apparent to ordinary observers. It would be assuming too much to suppose the city authorities can be in fault for being ignorant of what they could not learn in one of these ways; and to hold them further, we must expect them to possess some faculties in their corporate nature which are denied to natural persons. The charge was sufficiently liberal to the plaintiff, and the judgment- should be affirmed with- costs.

Cooley J. and Martin Ch. J. concurred. Christiancy J. did not sit in this case.