136 Mich. 541 | Mich. | 1904
This case is before us the second time. See 131 Mich. 506 (91 N. W. 752). The facts in regard to the accident are the same in the present record as in the former. We there held that, “if the defendant constructed its railway as directed by the municipal authorities, acting within the powers conferred upon them, no negligence could be imputed to it.” It is urged that the record now shows that the defendant complied with the requirements of the municipal authorities, and that, therefore, the court should have directed a verdict for the defendant.
The street-railway act authorized the defendant to construct its railway along this highway upon such terms and conditions as might be agreed upon between it and the township board. 2 Comp. Laws, § 6446. The only provision of the franchise granted by the township bearing upon the method of construction is as follows:
“ In the construction of the track or tracks of said railway, the grade shall be made to conform as near as is practicable with the grade of the highway or highways where they may cross.”
The fact that the township authorities did not protest against such construction is not a ratification of the act, so as to relieve the defendant from liability if such construction was dangerous to travelers. If, in such construction, it left an excavation so near the traveled portion of the highway as to be dangerous, it was its duty to protect it. The jury have found that it was dangerous, and that it was not properly protected. This was settled as the law of the case upon the former trial, and is therefore •controlling upon the second trial. See authorities cited in the former opinion.
Judgment affirmed.