74 Mich. 458 | Mich. | 1889
Lead Opinion
The record in this case shows that defendant Frisbie owned a lot on Clifford street, in the
It is claimed by the learned counsel, for the city that it is not liable, because the injury did not result from a want of repair of the street; that the common-law liability, which obtains in this State, does not attach to municipal corporations .for injuries occasioned by obstructions placed in the highways or streets by third parties; and he cites our own statutes and decisions upon these subjects. The ordinances of the city of Detroit require that proper warnings and danger signals should be used in such cases, but counsel also claims that for a failure to comply with
The statute bearing upon the case reads as follows:
“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets * * * * in good repair, and in a condition reasonably safe and fit for travel, by the township, village, city, or corporation, such township * * * shall pay to the person or persons so injured or disabled just damages,” etc. now. Stat. § 1442.
This statute was passed in May, 1879. It makes the city not only liable for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel. The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is very manifest that the Legislature intended to make it so. It was the object of the Legislature in the passage of this statute to avoid the decisions of this Court, by which, before the passage of the act, the law by construction was made to relieve the municipality from all liability of this kind, and we think the statute should be so construed as to effect the object intended by the Legislature.
If further evidence of the intention of the Legislature upon this subject is desired, I think it may be found in the act of 1887, pages 345 and 346, when it discarded the narrow limits of the common-law liability entirely, as heretofore held by this Court and some others.
I do not think the' ordinances of the city have anything to do with the consideration of this case. They are in no wise involved. They are for the regulation of the duties imposed upon the city in the premises. While the
The judgment must be reversed, and a new trial granted.
Dissenting Opinion
(dissenting). Plaintiff was defeated in the Wayne circuit court in an action for damages by the upsetting of her wagon in running over a pile of sand in
Where the city itself does not create the mischief complained of, it is entirely settled in this State that its liability for injuries occurring in the course of using the street for travel is purely statutory; and the only statutory duty imposed on the city is to keep its streets in repair. If the street is in repair, the corporation is not responsible for the conduct of private parties. It has been held by this Court that a street is not out of repair because of foreign articles placed on it by others than the city, whether lawfully or unlawfully. In McGutcheon v. Homer, 43 Mich. 483 (5 N. W. Rep. 668), it was held that a city did not become liable to a party injured by a nuisance which was brought within a highway by widening it, and that there was no liability outside of the statutes. In Agnew v. Corunna, 55 Mich. 428 (21 N. W. Rep. 873), it was held that a highway was not rendered' out of repair by a large stone lying in it; and in McArthur v. Saginaw, 58 Mich. 357 (25 N. W. Rep. 313), the same was held concerning a pile of lumber put there for building purposes. And so of ice loft on the surface. McKellar v. Detroit, 57 Mich. 158 (23 N. W. Rep. 621). When a city is given authority over the use of streets it does not thereby become liable for the misconduct of others in not obeying its by-laws, and is not obliged to supply their deficiencies. The statutes of the State impose no such obligations.
In St. Johns v. McFarlan, 33 Mich. 72, it was held that a village could not resort to chancery to prevent the violation of a by-law against erecting buildings contrary to the fire regulations; and in Hines v. Charlotte, 72 Mich. 278 (40 N. W. Rep. 333), it was in like manner and for the same reason held that there was no municipal liability for a fire caused by building contrary to the fire regulations. In Henkel v. Detroit, 49 Mich. 249 (13 N. W. Rep. 611), it was held the city of Detroit could not be made' liable for a failure to enforce its police regulations concerning the occupancy of streets. In Everett v. Marquette, 53 Mich. 450 (19 N. W. Rep. 140), where a city undertook to abate what it declared to be a nuisance in a street stairway, it was restrained by injunction, as having no power to interfere summarily without prosecution, or make that a nuisance that had not been so found. In Burford v. Grand Rapids, 53 Mich 98 (18 N. W. Rep. 571), it was
It is hardly necessary to resort to further reasoning on the subject, unless we are prepared to hold that our own decisions do not bind us as precedents. If we do not follow them, it is of very little consequence what we decide. But it is never a fair or safe course to allow that to be held negligence which is not negligence. No municipality has eyes to see or hands to remedy all the negligence that happens in its streets. If a city is bound to know what lights are burning at every place where there are excavations and other things in streets requiring to be signaled by colored lanterns, and to place such lights where they are lacking, it is bound to do what is impossible; still less is this so when the city has no notice of its own. The object of- by-laws on such subjects is to compel private persons to adopt the necessary precautions,
Neither was the lot-owner responsible on the showing. There is no rule of law which compels a person who has employed another as a contractor to do a lawful act to be responsible for that contractor’s failure to observe a public duty which he presumably will not neglect. In this case the contractor was the one who put and kept the sand and other articles where they were, and who under the ordinances was bound to light them. The purpose, and it is a lawful purpose, of letting work by contract, is generally to relieve the person who deals with him from having to look after the work. The owner or lessee of property may be a corporation, or an absentee, or a person acting through guardians or other representatives. If the liability follows ownership, it must attach to one owner as well as another. But it would be absurd to call such action negligence, and negligence is the only basis of this action. When work is let by contract, the employer has no more right to intervene in its management than any stranger, and he cannot be bound to do so. In Fisher v. Thirkell, 21 Mich. 1, it was held that a vault under a highway was a lawful erection, and that the owner of the premises was not liable for an accident happening by neglect to keep a man-hole properly protected, when the property was in the control of a tenant. The same rule was applied in a. precisely similar case in Johnson v. McMillan, 69 Mich. 36 (36 N. W. Rep. 803). There is.no liability attached to mere ownership, and no negligence when there is nothing neglected which was the duty of the party sued.
The judgment below was correct, and ought to be affirmed.
Concurrence Opinion
I concur in the opinion of the Chief Justice that the case should have been submitted to the jury upon all the questions of fact involved. The law imposes a positive duty, but the question of negligence in the failure to observe the duty is for the jury, under proper instructions.
