189 Mich. 117 | Mich. | 1915
The plaintiff, a woman 53 years of age, on the morning of March 17, 1914, while walking westerly on Ayer street in defendant city, and while crossing the crosswalk on the south side of that street where it is intersected by Lowell street, stepped into a temporary drain dug in the snow, causing a fall from which she received serious injuries. The streets at the place of the accident are paved, the pavement extending over and constituting the crosswalks, and during the winter months, when large quantities of snow and ice accumulate on the streets, it is spread out by the city employees, and when traveled upon becomes smooth and hard, and constitutes the surface of the streets and crosswalks.
At the time of the accident the accumulation of the snow and ice on Ayer and Lowell streets at the place where the plaintiff sustained her injuries was upwards of 15 inches deep, being smooth and level, having been traveled upon during the previous winter. Shortly before the date of the injury the street commissioner of the defendant city, who had charge of the street work, and whose duty it was to keep the streets, sidewalks, and crosswalks in proper condition and repair, caused a ditch to be constructed across the crosswalk on the south side of Ayer street where that street is intersected by Lowell street. There is some dispute in the record as to how this ditch was constructed and as to
It snowed on the afternoon and evening prior to the day of the accident, and as a result this ditch became filled with light, soft snow. The plaintiff, who resided in another part' of the county, and who had no knowledge of the existence of the ditch, arrived in Ironwood on the day previous to her injury, and upon the following morning, about 9:30 o’clock, while passing over the crosswalk, stepped into the ditch, the presence of which was entirely concealed by the light, soft snow, causing her to fall, with resulting injuries.
It is the contention of counsel for the plaintiff and appellant that the court erred in directing a verdict in favor of the defendant, for the following reasons, set forth in his brief:
(1) That the proximate cause of the injury was the dangerous condition in the street and crosswalk, results ing from the ditch constructed by defendant, into which the plaintiff stepped and was injured.
(2) That the fact that the ditch was concealed by a natural fall of snow which prevented plaintiff from discovering and avoiding it, in no way relieved the defendant from the result of its negligence in constructing the ditch, or permitting it to remain uncovered and unguarded, particularly in view of the fact that the*120 defendant admittedly knew and expected at the time that the ditch was dug that it would become filled and concealed by soft, light snow.
(3) That the ditch being.constructed in such a manner and at such a time and place as to make it particularly dangerous, imposed upon the defendant the duty to cover, guard, or otherwise protect it.
(4) That the testimony on behalf of plaintiff at least raised a question for the jury as to whether or not the action of the city in constructing this ditch and allowing it to remain uncovered, unguarded, or otherwise protected, knowing and expecting that it would become filled and concealed by soft, light snow, left the crosswalk in a condition reasonably safe and fit for travel, and whether such unsafe condition of the crosswalk was the proximate cause of the injury.
The learned trial judge was of the opinion that the proximate cause of the accident was the natural accumulation of snow caused by the snowstorm, which had just ceased at the time the accident took place and had hidden the ditch; and that there was no ¿vidence that the accident would ever have happened merely from the digging of the ditch. The question here involved is: Was the circuit judge right in holding that it can be said under these facts that the fall of snow was the proximate cause of the accident? If it can be so considered, he was fully justified in directing the verdict as he did.
The problem of determining the proximate cause, under the rules laid down by the various decisions, is indeed at times perplexing, and in the case of Stoll v. Laubengayer, 174 Mich 701 (140 N. W. 532), Mr. Justice Brooke, in reviewing this subject, said:
“The definition favored by the compilers of 21 Am. & Eng. Enc. Law (2d Ed.), p. 485, is:
“ ‘A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred.’ ’’
“Q. Any ditch that you would dig, or the city of Ironwood would dig, for the purpose you have mentioned, or for any other purpose, along about that time of year, would in all probability become filled with snow, or a snowstorm might come and fill it up; might it not?
“A. Certainly.
“Q. You always had a crew of men on to go around and clean them out and open them up afterwards?
“A. Yes, sir.
“Q. You would expect that there would be light snow that would cover up those ditches?
“A. We always cleaned them out when it was possible. We always had men for that purpose. We would expect that there would be falls of snow that would cover up the ditches, and we would have to go and clean them out afterwards.”
In the case of Baker v. Railroad Co., 169 Mich. 609 (135 N. W. 937), this court said:
“To make such negligence the proximate cause of an injury, it must be the natural and probable consequence of the negligent act, which, under the circumstances, an ordinarily prudent person ought reasonably to have foreseen might probably occur as the result of his negligent act. Where an act is negligent, to render it the proximate cause, it is not necessary that the one committing it might have foreseen the particular consequence or injury, or the particular manner in which it occurred, if by the exercise of reasonable care it might have been anticipated that some injury might occur.”
Viewing the testimony as to the construction of the ditch in the light most favorable to the plaintiff’s claim, and taking into consideration the weather conditions prevalent in that part of the State at the time
Being satisfied that it must be said that the construction' of the ditch was the proximate cause of the accident, we are of the opinion that the question of whether the action of the city in constructing and maintaining the ditch uncovered and unguarded, in the condition disclosed by the record, left the crosswalk in a condition reasonably safe and fit for travel, should have been submitted to the jury.
We are therefore constrained to reverse the judgment of the court below and grant a new trial.
