146 Mich. 173 | Mich. | 1906
Lead Opinion
Plaintiff has recovered a judgment of $1,700 for injuries received in consequence of falling, or being thrown down, upon a defective sidewalk.
The judgment and verdict must, in any event, be set aside for the intemperate language used by counsel for the plaintiff in his argument to the jury, persisted in after being rebuked by the court. In view of the further conclusion arrived at, it is unnecessary to dwell upon the point further than to say that criticism is not made of proper argument addressed to the conduct of the physician, as affecting his credibility. Waiver of privilege by plaintiff after the physician was produced in court, in the presence of the jury, as a witness for the defendant, would not bar comment of counsel for plaintiff, if, as was claimed by him, improper disclosures, made by the physician, led to his being summoned as a witness. We do not, in saying this, assume that such disclosures were made.
That the sidewalk was defective, and had been for a considerable time, is not disputed. The court said to the jury, and this portion of the charge is not challenged, that the fact was established. The testimony of the plaintiff, to which alone reference will be made, was to the following effect:
1. The injury occurred in front of premises described as lot 1, in block 78, also known as the “ Kennedy Lot,” at about half past 6 o’clock in the evening of June 12, 1903. Plaintiff was going west on Washington avenue, from his saloon to his home, carrying a gallon bottle of mineral water with one hand and his laundry and some meat with the other.
2. Plaintiff’s son and a companion came from across the street and walked with plaintiff. Plaintiff was on the inside and the boys on the outside or street side of the walk. “ I was walking real fast.” The boys stepped on
3. For two years plaintiff had gone over this walk six times every day, except that, upon some occasions, he took the other or north side of the street. The walk in front of the Kennedy lot had been in the same condition, substantially, as it was on the day of the injury, for two years.
“It was in such condition the planks would fly up if you stepped on the end of them. * * * It was in such condition that the nails stuck up .through the nail holes in the boards in certain places and there was large holes in the boards so that the nails would not hold-them down, and the stringers underneath were rotten. As you stepped on them, if you walked in the middle they would not tip up but if you got on to the edge they would fly up.
“ Q. You knew that condition during that entire two years ?
“A. Yes, sir.
“ Q. You are positive you are correct about it ?
“A. Yes, I think I am.
“ Q. You saw that condition every time you went along there ?
“A. Yes,'sir.
“ Q. You could see it was in the condition you have described, the day you got hurt ?
“A. Yes, sir.
“ Q. The boards were loose and would tip up if you stepped on the ends ?
“A. Yes, sir.
“ Q. These big holes were there and the nails stuck up .through ?
“A. Yes, sir.
“ Q. Some of the nails sticking up ?
“A. Yes, sir.
“ Q. And you could see the rotten condition of the •stringers ?
“A. Yes, sir,
“ Q. You knew that condition during the entire time ;you lived there ?
“A. Yes, sir.
“ Q. This continued up to the time of the accident ?
“A. Yes, sir. I did not notice it when I went along
“Q. You knew this old, rickety sidewalk would be the next sidewalk you would encounter after you passed this ?
“A. It didn’t enter my mind then.
“JL No, sir.
“Q. You knew when you started for home you would have to pass that piece of walk ?
“A. That was the way I always went.
“Q. You knew it was there ?
“A. Yes, sir. * * *
“Q. At the time you fell it was broad daylight, was it not ?
“A. Yes, sir.
“Q. There was nothing to prevent you from seeing, if you looked ahead of you, this walk in question at the time you fell ?
“A. No, sir.
“Q. There was nothing to prevent you seeing the bad place when you entered upon this walk if you had been looking for them ?
“A. I don’t know—
“Q. I asked you if there was anything to prevent you from having seen them if you had looked ?
“A. I suppose if I had my mind on the walk I would have noticed that when I came to it.
“Q. Was there anything there to prevent you from seeing the walk ?
“A. No, sir; the street is open right along. * * * At the point where the driveway enters there is a wagon track, and theré is a little depression between the street and the sidewalk where this driveway crosses, but there is no difficulty in coming into the driveway. You could walk in there easily. At the time when I reached this driveway coming from the east when I was hurt I could have turned out at this driveway by walking about 12 feet to the north and then have gone down the street to the west until I reached the crosswalk. It was a level road and not muddy, and if I had taken that course and had gone to the crosswalk I could then have gone 12 feet south and passed on to my home.”
At the conclusion of plaintiff’s case, and again when proofs were closed, counsel for defendant moved for a directed verdict for defendant, upon the ground that plaintiff had shown himself to have been guilty of negligence precluding a recovery. It is the law of this State, undoubtedly, that it is not negligence as matter of law for a
“As you stepped on them (the boards in the walk), if you walked in the middle they would not tip up, but, if you got onto the edge, they would fly up. ”
It is not claimed that the situation increased the care exercised by plaintiff. On the contrary, “I was walking real fast,” on the ends of the boards, and a boy was walking on the other ends. The obvious, and, according to his testimony, the usual, if not inevitable, thing occurred. The ends of the boards flew up. On one of them he tripped, fell, and was injured. His attention was not reasonably diverted from existing conditions and from
The judgment is reversed, and a new trial granted.
Dissenting Opinion
(dissenting). The testimony tends to show that, while plaintiff had previous knowledge of the fact that the walk in question was in bad repair, as he approached the bad strip of walk he was overtaken by two boys. He continued on his way conversing with them, and when he had passed onto the walk in front of the Kennedy property (the defective walk), 8 to 10 feet, one of the boys stepped on the end of a plank, the other end of which flew up and -tripped plaintiff. The plaintiff testifies in substance that the unsafe condition of the sidewalk did not enter his mind at the time. It is not negligence, as a matter of law, for a pedestrian to make use of a walk he may know to be out of repair. Harris v. Township of Clinton, 64 Mich. 447. If, however, he proceeds upon the way, and suffers an avoidable injury from a defect known to him and present in his mind at the time all would agree that his contributory negligence should bar recovery. Grandorf v. Railway Co., 113 Mich. 496. Where, however, the defective condition of