158 Mich. 201 | Mich. | 1909
The action is brought to recover damages for injuries which plaintiff claims were sustained in tripping or falling upon a defective sidewalk in defendant city on November 38, 1906. It is alleged in the declaration that the city had knowledge of the defective condition of the walk, and neglected for a year and more to repair it. The charter of the defendant city contains the following provision:
. There is no allegation in the declaration that any written notice of the defective condition of the sidewalk was •given to the board of public works. Defendant demurred-to the declaration, and the only ground of demurrer to which the attention of this court is directed is the failure to aver the giving of such notice. The demurrer was sustained. It is said in the brief for appellant that, inasmuch as the fact that the defendant had knowledge of the condition of this sidewalk is alleged, there is no necessity for setting out in the declaration the evidence relied upon to prove such knowledge. It is evident, however, that decision in the court below did not turn upon a mere question of pleading. The arguments presented involve both the construction and the validity of the charter provision. It is said that, properly construed, it would have no application to cases where the city itself created a dangerous condition of the highways; that in many cases, as where an improvement was carried on by the city itself, and a dangerous condition of the highways left unguarded overnight, the city would entirely escape liability to one injured during the night. The reasoning employed is that, as in such a case notice would add nothing to the knowledge possessed by the city authorities, so it would add nothing, and should not be required, in any case where the city had actual knowledge of the defective condition
The question presented, then, is one of legislative power. The general statute which has been referred to applies, in terms, to all cities. It is assumed upon abundant authority that, notwithstanding the general law, the legislature had power to dispose of this whole subject by a local act applicable to the particular community. In Maclam v. City of Marquette, 148 Mich. 480 (111 N. W. 1079), the charter which was considered provided that the city should never be liable for any damages sustained by any person in consequence of the neglect of any person to keep sidewalks clear of snow, ice, dirt, wood, or other obstruction. The charter was enacted in 1871. At that time there was no statute imposition upon cities of any duty in the premises, and the law of the State denied liability for mere neglect to keep highways in safe condition for public travel. If one may indulge conjecture, I should say that the provision was inserted in the charter to save municipal responsibility to citizens who for any reason were permitted to bring their action for injuries in the Federal courts. Later our general statute was enacted. It was held that the general law did not repeal the charter provision. It resulted that in the city of Marquette the special local act was controlling of the subject to which it was addressed. Beyond that, the general statute was operative and controlling. It has also
The order sustaining the demurrer is affirmed.