114 Mich. 450 | Mich. | 1897
Lead Opinion
The plaintiff appeals from a verdict -in favor of the defendant, rendered by direction of the court. There was evidence tending to show that she was injured by a fall upon a sidewalk at a place where a board was
We are of the opinion that the questions of negligence and notice should not have been taken from the jury.
Judgment reversed, and a new trial ordered.
Dissenting Opinion
(dissenting). Plaintiff, while walking about noon on a sidewalk of the defendant city, stumbled and fell. The walk consisted of plank five feet long and six inches wide, nailed to two stringers, which ran parallel to the street. The ends of the plank projected about a foot from the stringers. She was walking on the outside of the walk, and one Irwin Rood was passing her, going in the same direction. Rood, when about opposite to her, stepped upon the end of a plank, which had in some way been split in two lengthways. The other end of the plank flew up, and she fell over it. At the conclusion of the evidence on behalf of plaintiff, the court directed a verdict for the defendant, on the ground that no notice of the defect, either actual or constructive, was brought home to .the defendant.
“ Q. I call your attention to the defect in that walk, and ask you whether it was noticeable or not.
“A. It could be seen. Yes; it was noticeable,— the split, I mean.
“ The Court: What do you mean by that,— the crack ?
“A. The crack could be distinctly seen.
“ The Court: A critical examination would disclose it?
“A. Yes, sir.
“ Q. An ordinary passer-by, walking over that walk, would notice it ?
“A. I think he would.
“ Q. Did the walk, as you approached it and passed over it, present any appearance of a defect aside from the split in the board ?
“A. When I was there it did not; it was in place.
*453 11 The Court: The only examination you made of it was after the accident ?
“A. The only one was that day.”
One Dr. Newkirk also testified that he saw the plank on the day after the accident:
“It was in place. I simply saw a plank there, and that it was split, I should say three and a half or four feet, and ran to a point on the east end of the plank.
‘ ‘ Q. Describe the appearance of the walk, and the character of the defect, as you saw it there.
‘ ‘A. It was a split in the board. The board ran crosswise of the walk, and it was split, running to a point, and that is all. The east end was loose.
“Q. What do you say as to its being noticeable.
“A. I noticed it readily.”
It is conceded that-defendant had no actual notice. No presumption of notice arises in case of latent defects. Blank v. Township of Livonia, 79 Mich. 1; Wakeham v. Township of St. Clair, 91 Mich. 15. It does not appear that the piece of plank was ever left out of its place. No one would observe anything wrong in passing over the walk, unless he happened to step on this particular piece, and not-then, unless he stepped upon the end. The crack, apparently only a weather check, was no indication of an unsafe condition. The defect was not of that open and notorious character from which the law implies notice to, and knowledge on the part of the city. Tice v. City of Bay City, 84 Mich. 465; McGrail v. City of Kalamazoo, 94 Mich. 52; Hembling v. City of Grand Rapids, 99 Mich. 292.
The judgment should be affirmed.