Docket No. 79 | Mich. | Nov 18, 1902
(after staling the facts). 1. There was a sluiceway at or near the place of the accident. Defendant contends that the accident happened about 30 feet from the sluiceway, while plaintiff claims that it happened at the sluiceway, and that the bad condition of the road was on both sides of the sluiceway. We think there was a fair dispute as to the location of the hole into which the plaintiff drove, and that it was a proper question for the jury. The same is also true of the length of time the condition of the highway at this point had continued, and as to whether it was sufficiently repaired the previous fall. We cannot agree with the defendant’s contention that there was no dispute upon these points. It is unnecessary to set forth the testimony. We think it would have been error for the court to direct a verdict for the defendant.
2. We think the question of contributory negligence was properly submitted to the jury. Plaintiff had driven in safety over this place the day before and the fall before. Others had driven over in safety. Many teams may be driven safely over an unsafe place, but this is not
We also do not think plaintiff was, as a matter of law, guilty of contributory negligence in riding upon his load. There is sometimes as much danger, when driving over or along bad places, in walking at the side of the load, as there is in riding on top of it. We think all the questions were properly and fairly submitted to the jury.
Judgment affirmed.