61 N.W. 279
Mich.
1894
Grant, J.

The plaintiff’s cutter was overturned 'by an accumulation of snow and ice on a street of the defendant city. Some of the snow had been thrown off the streetcar tracks by the street-car company, where they curve around the сorner of Cross and Washington streets, and some thrown off the sidewalk and crosswalk. About a week before the acсident, there had been a heavy snow, and other snows had fallen meanwhile, making an average depth of one foot. The first snow was also accompanied by rain. Plaintiff and her husband drove upon this ridge in turning the corner.

Plaintiff claims the right оf recovery unqler the statute imposing liability upon municipalities for defects in public highways. The court held that the cаse was ruled by McKellar v. City of Detroit, 57 Mich. 158. We think the instruction correct. See, also, Rolf v. City of Greenville, 102 Much. 544.

The cases of Joslyn v. City of Detroit, 74 Mich. 458, and Hayes v. City of West Bay City, 91 Id. 418, do not control the case at bar. In the former a pile of sand had been left in the street by the express authority of the city for about four weeks. In the latter, a building, which ‍​​‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‌‌‌‌​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌‌‍was being removed, was in the street, by the express authority of the city, and under the supervision of its officers. In each the city was an active agent in placing the obstructiоn.

In some municipalities lot-owners are required by ordinance to clear their sidewalks, and in others it is done by *14the municipality by the use of snowplows. Private persons and municipalities have the right to remove the snow from sidewalks for foot travel, and, in cases of deep snows, to clear a track in the highways for the passage of vehicles. This necessarily implies the piling up of snow to a greater or less extent along the sides of the streets and at the crossings. It wоuld be unjust to hold municipalities liable for damages for such accumulations which have been changed by the weather to ice. The intention of the Legislature to create such a liability must clearly appear. It does not aрpear in the statute. The reasons of this holding are stated with great clearness in the Mc-Kellar case.

Judgment affirmed.

Long and Hooker, JJ., concurred with Grant, J. McGrath, 0. J.

Plaintiff was thrоwn out of a cutter, and injured, while traveling along one of the public streets of the defendant city. The cutter was ovеrthrown by reason of a ridge ‍​​‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‌‌‌‌​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌‌‍of snow and ice formed near a crosswalk, by the scraping of snow from street-railway trаcks which occupied the street. The court below, upon the authority of McKellar v. City of Detroit, 57 Mich. 158, directed a verdict for defendant. Thаt, however, was a case where the ridge was formed by natural accumulations as affected by ordinary use, and in that respect is similar to the more recent case of Kannenberg v. City of Alpena, 96 Mich. 53. But the rule underlying the McKellar case was that an acсumulation of ice and snow cannot be said to be a defect in the street or walk, within the contemplation of thе statute.

In Joslyn v. City of Detroit, 74 Mich. 458, it was held that the statute made it the duty of the municipality, not only to repair defects, but ‍​​‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‌‌‌‌​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌‌‍to keep the streеt in a condition reasonably safe for travel. If the doctrine of that case is *15io be adhered to, the McKellаr case must be regarded as -overruled, and the present case, and any case where a walk or street is rendered unsafe by the presence thereon •of ice or snow, must be held to be covered by the statute; • for, if a ridgе is formed by ordinary use, or by the slewing of a sled, or by the drifting of the snow, or if ice is formed upon walks by the elements, neither is any the less unsafe by reason of the manner of its formation. The test applied in all cases must be, — and that is a question for the jury,'* — was the street or walk in a condition reasonably safe for travel? Under this ruling, a brick, a piece of ice, or a stick of cordwood which falls from a load, becomes a source of liability. The street itself may have been but recently paved, and put in the best of order; yet, within a few days, the municipality may be mulcted in heavy damages by the purеst accident, the •carelessness of some individual, or the action of the -elements.

The cases of Bowen v. Railway Co., 54 Mich. 496; Wallace v. Railway Co., 58 Id. 231; and Laughlin v. Railway Co., 62 Id. 220, — do not depend upon thе Joslyn case. They were brought against the persons creating the nui.sance. The Bowen case antedates the McKellar case. Under the rule in the Joslyn case, the municipality was liable in each of these cases. The use of streets by street railways is a mode of use provided by the Legislature, and yet for carelessness in that mode of use, not affecting the body of the street proper, the city is liable. The statute, us respects this question, was the same whеn the Joslyn case was decided as it was when the McKellar case was disposed of.

The title of the act of 1879 is—

“ An act for the collection of damages sustained by ‍​​‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‌‌‌‌​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌‌‍reason of defective public highways, streets,” etc.

*16The title of the act of 1881 is—

“An act to provide for the recovery of damages for injuries caused or sustained by reason of defective public highways, streets,” etc.

Clearly, the language in the first section “in condition reasonably safe and. fit for travel” is in the nature of a saving clause. This is, it seems to me, made clear by the language used in sections 2 and 3. The second section provides that if any horse or othеr animal, or any cart, carriage, or vehicle, or other property, shall ‍​​‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‌‌‌‌​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌‌‍receive any injury or damage by reason of neglect by any township, etc., whose duty it is to keep such public highway, etc., in repair, such township shall be liable, etc. Section 3 provides:

“It is hereby made the duty of townships * * * to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, * * * and when the meаns now provided by law are not sufficient to enable any township ■ * * *• to keep its public highways * * * in good repair,. such township * * * is hereby authorizеd to levy such additional sum * * * as will enable it to-keep its public highways * * * in good repair.”

The Joslyn case is opposed to a number of thе earlier decisions of this Court, as is demonstrated by Mr. Justice-Campbell in a dissenting opinion in that case. I think that the Joslyn cаse should be overruled, and the ruling of the court below in the present case sustained. There was no sufficient evidence in the present case warranting the court in submitting to the jury the question as to-whether the city had not taken part in the creation of the obstruction.

The judgment should be affirmed.

Montgomery, J., did not sit.