101 Mich. 43 | Mich. | 1894
Plaintiff claimed to have been injured by falling into a hole in a sidewalk upon one of the streets of the defendant city, and opposite a vacant lot owned by the defendant Hubbard. His ground of liability
A lot-owner in. the city of Detroit is not liable for damages resulting from the failure to construct or repair a sidewalk unless he has failed to construct or repair it within 10 days after notice served upon him, and after the common council has ordered its construction or repair. Charter, chap. 7, § 57. In this case the council had taken no action, nor was Mr. Hubbard notified to construct the
The lot-owner cannot be sued by the injured party, because neither the common law nor the statute gives him the right of action. The charter nowhere, either directly or impliedly, authorizes or contemplates that the injured party may bring suit against the lot-owner. The charter provides that if the lot-owner neglects to construct or repair a sidewalk, as ordered, within the time prescribed by the notice, and the city is compelled to pay damages for injury to any person on account of such neglect, the owner shall be liable to the city for the amount of damages so paid, and the same may be collected in an action of debt in the proper court. The sole condition of the lot-owner’s liability is its establishment by a judgment against the city in favor of the injured party, and then the right of action is given to the city alone. Taylor v. Railroad Co., supra.
There are other errors for which the case should be reversed, but as they cannot arise upon a new trial, under this decision, we need not discuss them.
It is insisted that plaintiff, upon his own evidence, is guilty of contributory negligence. 'Under the record as it now stands, we do not think it necessary to pass upon that question.