*1 property- subject planning because to destruction integral part though separately, anis even viewed create no hazard whole, of that immediate developed minimum lot health if and welfare general my opinion, welfare would best sizes. zoning by orderly planning served be body corporate. to lot size are no Restrictions as legislative local discre more outside bounds zoning for to the than of one area factories tiоn Lamb of a residential use. exclusion Mich 136. Monroe, 358 judge trial the decision of the I would reverse complaint. plaintiffs’ bill of dismiss Kelly J. JJ., Adams, concurred with and Souris, CITY
HARRIS v. OF DETROIT. Depres- — Corporations — Municipal Defective Sidewalk 1-inch sion. "by settling ap- depression in occasioned of 1 A a sidewalk slab preceding proximately 1 inch below the slab did not constitute municipality, disrepair as to render within a state of located, damages liable for incident whiсh such sidewalk 242.1). depression (CLS 1956, caused sueh to accident § Souris, Smith, Adams, JJ., dissenting. Otis M. Wayne; Moynihan, (Joseph A.), Appeal Jr. (Docket April 17, 1962. Cal- No. J. Submitted September 49,239.) No. Decided 1962. endar References for Points in Headnote Jur, Highways 25 Am Degree inequality in sidewalk which makes court, municipality’s liability. as to 37 ALR2d 1187. or Detroit. Case by Eliza Harris against Detroit for personal injuries sustained fall on sidewalk on March 9, 1960. Cause dismissed on motion. Plain- *2 tiff appeals. Affirmed. <& S. (Lawrence Charfoos, of Charfoos Charfoos for
counsel), plaintiff. Goldstich, Nathaniel H. Corрoration Counsel, a Andrew Saway Valenti, F. Assistant Alfred Corporation for Counsel, defendant. a Plaintiff filed declaration in the J. Kavanagh, county of Wayne against for the de circuit court seeking Detroit recover for dam city fendant of when injuries out suffered she ages growing sidewalk. depressed on Plaintiff tripped allegedly into of the slabs had settled the ground one alleged 1 inch below the slab. preceding approximately highway action on the general based this Plaintiff recovery which law, amended,* provides upon any injuries high suffered damages in this reason of failure or streets State ways in repair. or street reasonable highway such keep of Detroit and filed appeared Defendant stating: to dismiss motion * 283, 1956, 22, 1, (CLS eh as amended 242.1 PA No § § 9.591]), Ann 1958 reads as follows: Rev § [Stat bodily injury any persons sustaining upon “Any person or State, by highways neglect public or streets in this reason of streets, bridges, sidewalks, public highways and all keep such or to crosswalks and culverts on the repair, in same reasonable reasonably township, village, and fit for travel condition city safe corporate authority corporation public or whose over extends such
highway, street, bridge, sidewalk, culvert, crosswalk or and whose duty keep repair, township, is to the same reasonable such village, city corporation pay or shall be liable to and shall to the disabled, injured person persons any person suffering so and to damages by just injury, damages, reason to be recovered in jurisdiction.” trespass competent an action of on the case before court Michigan Reports.
1. That the declaration failed to state a cause of plaintiff could recover action from de- city. fendant the face of plaintiff’s
2. That on declaration defective sidewalk was appears alleged approx- 1 inch the other squares. below imately That no on the liability imposed 3. city, within municipal corporation, meaning anyone where over a statute, trips depression less than depth.
The trial
granted
the motion to
judge
dismiss,
Berry
apparently
relying upon
Detroit,
Mich
Plaintiff
appeals, presenting
question:
one
242.1 (Stat
Under CLS
Ann
§
1958 Rev
a defect
in a
9.591), is
sidewalk wherein
there is
levels,
less than
2-inch
difference
as a matter
nonactionable law,
*3
in
Plaintiff, both
her brief
in oral
and
argument,
the
in Michigan,
supported
admits
rule
by a
with Bennett v.
list of cases
City of
long
beginning
Joseph,
The trial court correct was motion granting to dismiss. The order the motion to dis- granting affirmed, miss with costs favor of defendant. Carr, Dethmers, Black, JJ., Kelly, C. J., Kavanagh, concurred with J. oe Detroit. Haréis (dissenting). question in The this case
Adams, J. shall continue to hold is whether or this Court past that, under 242.1 it has in the CLS as §9.591), person (Stat cannot, Ann 1958 Rev injuries be law, received a matter of recover city a defect less than inches cause of sidewalk. Bigelow City Kalamazoo, 97 Mich description decided. A of the scene
121, was barring in that case and the recov- accident reasons majority ery opinion: law, as a matter of in the set forth unpaved, “Portage in wet weather and occupied was street muddy. the center very track streetcar A planks, of 2 was constructed The walk of 4 inches street. in width. to 16 inches thick, and from space planking inches, Between the paved plank, been space had of the outside railway by the street The rail use cobblestones. was the raised tracks planking ordinary been had flat rail. grade, car that at the street so above the higher plank 2 inches of the the surface planks had been laid between rail. than the Short planking from 2 of the were The ends rails. it was rail. In this condition to 4 inches from the planking, being scrapers rail, inter- that the above found сars, attached to the street fered with planks authorities the ends and the caused commencing to be chamfered back several off, stepped from the Plaintiff’s decedent ends. edge planks, 1 of her foot the beveled these slipped, she fell submitted and to the forward. The court jury, for the a verdict defendant resulted. *4 “Upon entitled to defendant was made, the ques- unnecessary the to consider verdict, and it is alleged plaintiff. defeсt the
tions raised adopted, plan part which was ren- aof crosswalk existing necessary by Crosswalks conditions. dered pedestrians. for the convenience are constructed walk
This of necessity; was elevated otherwise, it would have been of little railway value. The tracks were lower necessarily than the walk. It became nec- essary either to cut off planks the to allow the use or to chamfer scrapers, them down so as to allow the scraper pass over them. By adopting* the other plan, greater another danger would presented. have been In all of our these cities con- ditions present themselves. Even in promi- our most nent thoroughfares, paved in the most approved manner, curbs must carried, be and at the crossings, are from they 2 to 6 higher than the pavement. The curb must left be bare, inattentive people be liable stumble, or, as is done, a frеquently plank is placed upon an incline, upon which' pedestrians carelessly advancing are liable slip. In either case there the minimum of The walk is not danger. absolutely safe, but cannot be said that is not in a reasonably safe condition. The same true all alley nearly crossings. our are Gutters nec- left essarily for the passage of water. These cross- are not ings but absolutely safe, be they may reasonably so. Neither streets, nor sidеwalks, cross- can walks be constructed upon dead level. People Persian rug upon are liable to stumble over a parlor floor, danger- cannot made less and streets ous than Crosswalks our rooms. drawing in this iden- unpaved usually streets are constructed necessarily con- tical manner. Streetcar tracks at structed the street Of we must grade. necessity have these gutters railway gutters at tracks. These abrupt have and must be wide edges, еnough wheels, wheels, admit of play passage the walk at the intersection scraper, present case. off, chamfered tracks must be holes planking, large leaving To have shortened increase the foot, danger to admit a enough a cross- it. The construction than rather diminish requirements with the walk in accordance locality, adopting adopted, and usually the means adapted the convenience which are best *5 ok Dеtroit. negligent public, construction. said cannot be keep required to in a condition streets Cities absolutely A for travel. crosswalk must be safe reasonably reasonably pur- of safe view the safe; necessary pose constructed, which it is the uses (Em- varying the conditions.” street, and all phasis supplied.) significant thing majority the The most about portion. opinion italicized of the Court is the Under city existing that the had time, conditions at the minimum constructed а walk amount ods of would cause danger, other available meth- known and being likely danger- to be more construction agreeing cir- ous. One Justice with the dissented, question judge cuit the that the condition raised as to or not the walk reason- whether was ably one. safe case, Prior to this the case Sebert
Alpena,
duty
keep
their
165,
78 Mich
cities to
repair
was affirmed
this
streets
reasonable
held that the
whether
Court
was
duty
jury,
performed
or
had beеn
for a
not the
was
taking
circumstances,
into
all
account
day
night,
time of the
the location
as the
cir-
size of the
other of the facts or
defect,
surrounding
accident.
cumstances
following the
in the Kalamazoo
However,
decision
gradually
proposition
Case,
hardened into
in a walk
less
law that where
defect
depth,
than 2 inches in
to be safe
would be considered
walk
city
negligence.
free
noting.
process
De
is worth
Weisse
(1895), Miсh
it was
484,
troit
said:
many
would be
having
miles of walks
“In cities
absolutely
impossibility
walks
to make these
utter
an
impose that
legislature
intend to
did
and the
safe,
duty
con
upon municipalities
whatever
act,
this
It
have had.
act of 1879*
struction
army
require
men in the
of Detroit
do
an
expected
carry
Inspectors
around
are not
this.
plane
smoothing plane or an adz
with them a
hew down
people
plank
every
protuberance against which
small
*6
might
this
and fall. The fact that
stumble
down
not
to have
was not nailed
does
seem
injury.
It
the same as if it had been
caused the
was
2
nailed,
that the
a
other,
but
inches above
so
was 1-1/2
presented
squarely
whether
in
so that it is not rea
rise is
defect
the walk
sonably
desiring
not
relieve munici
safe. While
responsibilities fairly
palities from the duties and
upon
them
act,
cast
this
we should be careful
cast burden
them which was not
legislature
of the
intent
to create.”
year
cement sidеwalk case
first
in the
1899,
In the
Lansing,
City
left to the “(cid:127) woefully judges misinterpreted the ‘If have day day, if mores of their of their mores no they longer ought in not to ours, tie, those of helpless submission, the hands of their successors.”* planks, “2 days constructed when wаlks are The width,” in to 16 inches from 12 4 inches thick, the-planking space 16 inches between plank paved with space cobblestones outside longer any than the horse more extant are no present transportation. usual means municipalities only from what to insulate serves responsibil- proper given circumstances, be, well ity * * * keep sidewalks “to under statutes * ** repair, in condition rea- in reasonable sonably 242.1 fit for travel.” CLS safe and (Stat §9.591). The correct rule Ann 1958 Rev supra, City Alpena, was enunciated wherein must Sebert of travel the Court held the necessities given that if there in a case and examined a dan- or not there as whether is.a gerous to the condition, be submitted should proper under instructions from the court. (26 Moines, In Beach Des 238 Iowa 81), supreme ain held, the Iowa court NW2d involving depression inches, of about 1-1/2 2-1/2 city’s granting that the trial court erred defendant 337) (p : for directed said motiоn verdict. The court depth- height de- of a or the of an elevation “The ques- pression on the determinants are not decisive liability kind.” of this tion cases *8 Dubuque City (1960), 251 also, Alber v. See, of 185). (101 354 NW2d Iowa versity 151, 152. [*] William L. Storrs Lectures before the 1921.—Gardozo, Nature of Law School of Yale Uni- the Judicial Process, pp 535- Detroit, v. ok (83 Loughran City York, 298 NY New 320 cogent 136), court made this comment in NE2d city: judgment reversing a for the years past least, “For the 20 at this court has recognize аny principle declined to urged as that city. contrary, On the held we have municipal- liability that there no rule that the of a ity in a case this sort turns whether the hole depression, pedestrian causing other number or fall, 4is depth inches—or constitutes inches—in or * * * trap’. recently ‘a weAs but requirement observed, there is no that ‘a a hole in * * * public thoroughfare particular be of a depth give before legal its existence can rise to a liability.’ Jaybro Realty Development Wilson v. & (46 498). Co., 289 NY 412 NE2d 497, A munici- pality’s liability depends on having- or whether not, in mind the neg- circumstances of each case, it has keep public lected thoroughfares— and failed to its whether the sidewalk a pathway street or the park—in a trians.” reasonably pedes- condition safe for County supra, In Parker & Denver, prior holding depressions Colorado decisions specified depths heights elevations constituted per nеgligence actionable se were overthrown. The elevation was from 2to inches. After reviewing (pp the authorities, the court said 361): improper and error “We believe court to- negligence by undertake determine actionable depression fraction an inch for if the Springs Phillips, (230 Colorado Colo P 617), good depression is held to be then if law, or negligence, elevation is inches or less there is no actionable if it is a whereas, frаction an inch over require jury’s- actionable negligence. determination of This an absurd sit uation, and we cannot subscribe thereto. It has-
536 367 many we been some of which decisions, announced necessarily shall cite that each case hereinafter, by surrounding must be circum determined generally to a matter must be left stances, jury.” City For Blasick see, other decisions also: v. 122); Ray (274 (1954), Yakima 45 309 P2d Washed (69 City (1937), v. 412 P2d Salt 92 Utah Lake City, 153); City 119 ALR Stratton v. Kansas (Mo, McKay City 1960), Missouri 337 v. 927; SW2d (57 432); App (1950), Atlanta 80 Ga 797 SE2d (1948), (213 Ky 46 308 Louisville v. Verst 517); Poppen (1952), Watertown SW2d 616); Spring (53 402 SD NW2d Reeves 74 178); (171 (1960), App NE2d Ohio field (89 Bovey Village (1958), 252 Minn Rudd v. 689). NW2d judge reversed decision of the trial should be proceedings in for further remanded and accordance principles usual and familiar with the negligence applicable involved. a claim of where all facts and a consideration of If careful opinion judge of the trial is the circumstances, negligence on law, no a matter of existed as thаt, part city, direct rule and then, of the he should so if hand, On the other defendant. verdict case, circumstances all the facts and under appears question as whether there negligent, should then such its determination. be submitted JJ., M. concurred Smith, Otis Souris Adams, J. where, {concurring). not a case This is J. Black, decision chal- and nonmature nonunanimous standing shown statute is lenged at the bar, misapplied. An ex- having misconstrued been City ok Detroit. judicial ample kind of blunder was of tliat examined Employment Security right in Park v. Com and set 70-and-more-year- mission, Mich 103. Here a very terms created the its statute, old pleads, plaintiff right this been con of action has *10 by long series unanimous decisions as a strued denying right pleader is the unable to
such
where
al
lawyers
lege
prove a
what
and
violation of
have
the “2-inch rule.” The
to know as
sole
come
any “cogent
are disclosed,
whether
circumstances”
is
might
judicially noticed, which
leаd uS
many years
depart
that
was
so
from
settled
to
by
perceive
ago.
and
the
none,
I
so
stand
applicable
general
to stare decisis
rule which is
distinguished
statutory
from
field of
construction
the
appears
general rule
Such
common law.
that
the
pp
the
Courts, 66,
Am
It was
Jur,
in 14
supra.
subject
Case,
Parle
little debate
some
special emphasis
that
the fact
we
is
Stressed
construing
unanimous
asked to overrule
cases
not
or line of eases
statute;
an unamended
a
announcing
As to the
the common law.
a
appeal
duty as well
of final
has a
latter
court
tending to
sustenance
license; that of
care
growth
law
and amended
and
made not
prominent
legislative
appointed
A
instance
bodies.
(163
697)
Green,
ALR
safe municipal footings. speaking- Now, less other stable only respectful I marvel observer, discreet stay upright on the that she is newеst and able (we them) walkways, wooden still have best concrete, longer spikes get as those called heels sharper. change no there is Brothers, con- No, suggesting dition or rule. There of the 2-inch risk overthrow change, greater an even risk; is which fathers and will no control over have have whatever. courts are not of which Such kind lead overrule earlier decisions. I concur in affirmance.
PETROSKY DZIURMAN. Evidence&emdash;StatutoryPresumption&emdash;Rebuttal&emdash;-Question 1. Jury. rebutting evidence clear, сredible positive, and must be There statutory presumption to eliminate order opposing a question of whether such consideration, otherwise should be settled has been overcome presumption proper instructions. under Party Same&emdash;Opposite as Witness. testimony opposite by the bound plaintiff cross-examination, where there party he has called whom 1948, 617.66). (CL direetly disputes it other evidence [1] [2, [4] [3] 53 Am 53 Am Am Am Witnesses Jur, Jur, Jur, Jur, References Trial § Trial Trial §§ 350. 185-187. for Points §§ 7,97. *12 in Headnotes