*1 1969] 365

MULLINS WAYNE COUNTY Opinion of the Court Highways Repair—Construction—Statute. 1. — duty keep The view there is road reasonable quo repair duty maintain the status not a to con- —but —to keep reasonably struct or the road so that it and safe public convenient for travel has not the rule been since en- defining respeet actment of the statute duties of counties with (MOLA 224.21). to roads § Highways Duty—Road Authority. Building 2. — authority beyond of a goes preservation quo, status design it affirmative has the and keep construct road and and con- venient for travel. ^[18] ^[19] [23] [24] [26, ^[2] [21,22,25] ^[4] [5] [6] ^[1] ^[7] [3, T3] [8] [9] 15] 10] 12] 14, 16] 17] 11] 397, 398. 345, 346. 41 50 Am Am 20] 523, 38 Am 39 39 Am Jur 39 Am Jur 39 41 Am 50 Am 38 Am 39 Am Jur 39 Am Jur 39 Am Jur 39 Am Jur 50 Am 39 Am Jur 50 Am Am Jur Am Am Jur 39 Am Am50 524, Jur, Negligence Jur Jur, Jur, Am Jur 39 Am Jur, Negligence Jur, Pleading Jur, Jur, Jur, 527, 528. References Jur 2d, Highways, 2d, 2d, 2d, Jur, Pleading Statutes 2d, 2d, Highways, 2d, Highways, 2d, Statutes Statutes 2d, Highways, Statutes 2d, Highways, Highways, Highways, Highways, 2d, Highways, 2d, Highways, Highways, Jur Highways, Statutes 2d, Highways, § §§ §§ § §§ 442. §§ 350. 403. 340-343. 534, § 340-343. Streets and Streets and Streets Streets 27. 344, Streets and Streets Streets and 350. Streets and Points Streets and Streets Streets 542. Streets and 351. and Streets Bridges Bridges Bridges Bridges Bridges Bridges Bridges Headnotes Bridges Bridges Bridges Bridges Bridges §§ § §§ §§ §§ §§ §§ 402. §§ §§ 398, 401, 202, §8 72-74. Bridges §§341, §§ 405, 398, 397-407. §§ 397, 398, 342, 345, 486, 488-490, 402, 345. 491. 406. 404. 494. 491. 407. Ápp Í6 Highways Jury—Negligence—Barriers. — may negligence for failure jury A find the road railings or barriers needed reason- provide *2 public ably travel. safe and convenient for

4. Statutes —Construction—Re-enactment. Supremo a Early continuing the Court of constructions responsibility building for and maintenance imposing statute regarded legislatively ap- as highways entitled to be of are light subsequent of which have proved in re-enactments the (MCLA 224- change language sought applicable the not to

.21). Authority Warning Highways Devices. — 5. —Road duty reasonably part keep of to As its construct and a road public authority travel safe convenient a road is points required provide special danger such at to devices of necessary may margins to warn the driver where the of prevent roadway leaving his the end or vehicle from the road. Summary Judgment Negligence — — — Judgment 6. Question Fact. Summary judgment for defendant in road commission alleged negligence plaintiff the in ease where commission’s failing signs warning a visible barricade and a to erect that error; was about to terminate was no court can decide road negligence causal whether sufficient evidence of introduced jury question pleaded a on the issue whether to make negligence of such barriers and is until the absence plaintiff heard. evidence of the Highways Deviation—Negligence—Question Fact. 7. — Every surface of a road is not sufficient in direction or deviation responsible negligence evidence plaintiff go jury. a entitle commission to Negligence Evidence—Sufficiency—Question Law. 8. — negligence particular case of causal in a the evidence Whether go law jury is a plaintiff still entitles the eourt. Negligence. Highways Abruptly-Ending Road — 9. — justified concluding in of fact would be A reasonable trier warning con- abruptly has been ends without a road which kept reasonably in a safe manner. structed Wa.ynb Highways Dangers—Darkness. 10. — Dangers surrounding night the traveler the darkness of are conditions that should be taken into consideration keep repair authorities whose is to construct and roadway. Highways — Signs— (cid:127)— —

11. Construction Barriers Question Pact. permitted The trier of fact should be to decide whether failure sign coming erect or barrier that a road is flagrant an is a end defect in construction. Highways Signals —Traffic —Statute. signal statute, The uniform traffic control which authorizes erec- sign- tion of traffic-control devices discretion of a erecting authority, thereby does not relieve to construct and the road (CLS 257.610). and convenient for travel Repeals—Implication.

13. Statutes — principle repeals by implication of statutes are not is well favored established. *3 Highways Signals 14. —Statutes—Traffic —Pari Materia. signal The uniform traffic control statute and the statute imposes upon road authorities roads under jurisdiction in repair their conven- pari publie 1961, (CLS ient for travel are not materia §§ 224.2, 257.610).

Dissenting Opinion C.

Lesinski, J., Quinn, J. Highways Negligence—Pailure 15. — to Warn of Terminus. having jurisdiction highway The over a cannot be charged negligence by failing with virtue to warn the of highway. the terminus of of Highways. 16. Statutes —Construction—Common Law — liability providing improper The statute maintenance for of derogation county roads is in the common law can- of enlarged (CLS 1961, §224.21). not be construction Highways Repair Warning Duty. 17. —Road Statute — Devices — requires heep repair statute which The coimties in reasonable county county all roads no on the creates of county anything and the board road commissioners to do of anil devices (CLS §224.21). about Ápp Negligence Duty.

18. — duty. Negligence requires breach of Highways 19. Controls —Statute. —Traffic dealing system with a The statute of uniform traffic-control given says dis- than authorities are more local devices no ' high- place devices on and maintain cretion to traffic-control jurisdiction carry ways to indicate and to out under provision local ordinances or to code or the vehicle traffic devices, used, regulate, guide warn, or and that sueh if traffic specifications provided to the state manual and shall conform 257.610). (CLS §§257.608, statute Highways—Road Repair Control Statute —Traffic Statutf.s — 20.. Materia. Device Statute —Pari improper providing maintenance The statute dealing de- county with roads the statute traffic-control do statutes pari read in because the vices cannot be materia they thing common nor do have a not relate same 257.610). (CLS 1961, §§224.21, purpose

Dissenting Opinion Holbrook, Immunity — — Highways Legislature (cid:127)— Coun- 21. Governmental ties. granted gov- legislature, by statute, abrogation limited improper immunity county as to ernmental suits county (CLS 1961, §224.21). maintenance roads Immunity Highways County —Com- 22. — Roads —Governmental mon Law. abrogation governmental legislative granting act limited immunity improper roads has maintenance of narrowing generally changed by im- law been decisional (CLS 1961, munity §224.21). cities and counties Complaint. Judgment Sufficiency Pleading Summary — — Summary judgment road commis- in favor of defendant *4 negligence plaintiff’s complaint proper, was where sion for allege maintaining it because road was deficient failed county knowledge have knowl- or notice or should has refused, dangerous edge it condition which or notice aof injury injuries neglected correct, failed, or and that or by proximately plaintiff caused were caused fact breach county’s duty. County Wayne Highways by -Statutes—Incorporation Reference. 24. — signs devices providing The statute traffic-control for improper liability providing main- part statute for by incorporated it counly nor is it roads tenance of 257.610). (CLS 1961, §§224.21, or otherwise reference Highways -Duty—Liability. Controls — 25. —Traffic statute, upon liability to another based Absent reference liability legislature on the to create with failure of signs place county its traffic-control failure for signs highways providing in the act its devices on (CLS 1961, imposed devices, can be no traffic-control §257.610). Highways Duty. Controls —

26. —Traffic mandatorily devices does not providing Statute for traffic-control county place require commission traffic-control jurisdiction (CLS 1961, higlmays 257- under its on or devices .610\a\). Negligence. Highways Controls — 27. —Traffic place proper county maintain a road commission Failure of possible may deprive sign or device traffic-control negligence such does not but in an action failure defense negligence. grant plaintiff action a cause of Benjamin Wayne, Appeal Burdick, D. from (Docket May at Detroit. 13,1968, en banc Submitted Behearing 1,411.) 24, March Decided No. April granted awarded, a 1969. No costs

costs appeal question. denied October Leave to 382 Mich 791. 1969. See special

Complaint Mullins, administra- Hassie Bay Dutton, deceased, of Clifford of the estate trix Wayne County, the Board and Lois and Clarence Sell Commissioners, Boad wrongful her decedent when death of Sell,M. for the driving end went off the which he an automobile of a defendants owned road onto lands Summary judgment in of defendants favor Sell. appealed Plaintiff commissioners. and road *5 16 App appealed Appeals. Plaintiff Affirmed.

to to Court by equally Supreme divided Affirmed an Court. equal by division of court; order of affirmance sponte Supreme cause and the vacated sua Court rehearing Appeals for remanded to the Court Reversed and remand- 380 Mich 151. en banc. See ed. (Stanford

Ripple, Steiner, L. & DeWitt Chambers counsel), plaintiff. Joselyn, Cary, de- Martin, Bohall & BeGole, commissioners. fendant road BEFORE: Entire Bench. was decedent Plaintiff’s T. G. J.* Kavanagh, driving collided he was with when the car

killed barrier of Mortenview road at terminus county. Wayne at Mortenview road terminated There intersected Brest road. where it dead end advising sign other device no road. of Mortenview the termination complaint plaintiff’s asserted that the de- had commissioners board of fendant duty road in maintain Mortenview travel. fit and safe condition had a to main- of that defendants It Sell asserted adjoined property, terminus tain their as not to consti- a manner road, Mortenview such lawfully using persons trap Mor- hazard to tute a complaint the defend- asserted road. The tenview duty by erecting im- an breached ants Sell signed to sit on the the work 6, ^[*] Thomas 4, and CLS assigned Giles Kavanash, has been Court of 600.225, as amended. completed” pursuant Appeals from Justice of the February 27, Supreme Const Court, 1963, art “until as- op Opinion the Couet property they did. It on their barrier movable fail- its board breached defendant asserted ing of Mortenview terminus to warn although have known it knew or should road of the by trap erected created the barrier or hazard *6 by duty its failure it breached Sell, defendants complaint further asserted it. The warn negligence the was the cause of defendants the injuries plaintiff suffered.1 of the complaint: following paragraphs are from the The day April, 1964, plaintiff of on the 27th “4. That or about [’s] deeedent, Ray Dutton, operating his 1958 Clifford convertible, southerly no. HS 8636 a license Oldsmobile near its with on Mortenview road intersection direction Taylor, eounty Wayne, township of of Brest road the Michigan. being time of road at that a State street, Mortenview thoroughfare highway or maintained and controlled Wayne eounty road commissioners which the board of maintain in a had a and said board publie travel. condition fit township road and Brest road in the of “5. That Mortenview Taylor, Wayne, eounty Michigan of both State dead at their intersection. end or terminate are the Clarence Sell and Lois M. Sell the “6. That defendants adjoins property road on owners of the south as well as the Brest the southerly termination of Mortenview road. at with Brest road its intersection have That the Clarenee Sell Lois M. Sell “7. defendants immediately adjoining property to so maintain their southerly of Mortenview road Brest road at the in sueh terminus hazard, trap fashion as not to constitute a or operating persons lawfully vehicles nuisance motor on Brest Mortenview or road. day 1964, plain- April, 3:10 a.m. the 27th “8. That about lawfully operating while his automobile on tiff’s decedent road as aforesaid was unable to ascertain that Mortenview road a dead end intersection said came to at its Mortenview road, a result the carelessness and with Brest stop negligence turn failed to of the defendants come to -or at end of Mortenview and as a the south result thereof, placed a barrier the his car collided with de- property on their at the terminus of Morten- fendants Sells view grave caused and severe in- road which said collision resulting juries on the 27th plaintiff death, in his deeedent [’s] day April, negligence of the board of road com- “9. The following: missioners consist post warning “(a) or Failure suitable other devices along Mortenview road north of its at termination its with road. intersection Brest Míen App Opinion op the Court county road commission- defendant board of summary judgment the trial court moved

ers granted it. carefully considering now we are matter

After trial erred even as we erred court convinced Wayne County prior in Mullins v. our decision App 4 Mich I. prior decision of our would limit Court applicable authority’s obligation under preservation quo. More

statute3 the status “(b) provide a Failure to visible barricade termination, despite at deviee the faet fendants Clarence Sell and were of Mortenview road it knew should have known that de- and a M. Sell Lois had erected maintaining dangerous, immovable, bar- at the ricade termination of which was Mortenview clearly light visible to motorists under all conditions of wholly and which was unmarked. negligence “10. That defendants Clarence Sell and creating maintaining Lois M. Sell condition on consisted *7 property their immediately south of termi- the which, by nation of Mortenview road reason of its character an trap constituted invisible to almost who motorists might not be aware that Mortenview road was terminated property at said defendants’ line which said hazard was by great any calculated said defendants to do harm to might by motorists who emergency be confronted an situ- by ation reason of the termination of Mortenview road.” 2 by evenly Our former decision was affirmed an Supreme divided Court 380 151. The order of affirmance was subse by Supreme quently remanded 1, 1968, vacated the April Court on and the case rehearing by for en Court, together banc this with Kuchta (Court v. St. Clair Board Docket Road Commissioners Appeals 2,646). No. See Subscribers, Mich, Notices to 380 Part applicable The 1909, statute to 283, 4, this ease is PA No eh (MCLA 9.121]), Ann 1958 Rev in § § [Stat rele § part, continuously vant (Kowalczyk Bailey since enactment [1967], 568, 571), 379 Mich has read as follows: hereby duty is “It made the of the keep in counties to reasonable repair, travel, they so that shall be safe and public convenient for roads, eounty bridges all and eulverts that are within their jurisdiction and under their and care control open and whieh are to public provisions travel. The respecting of law liability the of town- cities, ships, villages corporations damages and injuries re- sulting from in performance a failure the duty respecting of the same roads under control, apply their shall adopting to counties such system,” road 373' Wayne--County op Opinion the Court' been),built specifically, goes aif road lias and into* obliged repair disrepair, is it. the the obstructed,' obstruction be If must it becomes regard places If it there. without who removed sign an'd falls it must be down, a replaced. been erected has opinion, says that is where''the

But, that authority’s duty ends. prior opinion keep italicized'the words “to in The repair” quotation of the the relevant reasonable (see applicable portion footnote 3 for of the statute ' “emphasis statute). supplied” That em- text opin- phasizes the theoretical basis for the Court’s keep repair duty i.e., is a in reasonable ion, there quo duty maintain the status not —to —but “reasonably keep so it is the road that construct public convenient for travel”. Michigan was, once the law in indeed, Such view the the rule since enactment but has been legislation here and the con- under consideration Sq-r legislation Michigan struction of that quoted “provisions of sentence law” referred to the second The already which the substance was a then enacted statute on above modeled, comparison of can seen first sentence was as with be legisla- quoted previously enacted first sentence : above tion hereby townships, villages,’ cities or cor- made the “It reason-, so, they porations ably repair, shall reasonable streets, travel, highways, public all safe and convenient ju-.' sidewalks, within their bridges, and culverts that are cross-walks tp- control, open risdietion, public care and which are under ** 1897, 3443). (CL 1887, 264, PA No travel § language 1885, PA No copied relevant in turn verbatim the This 214, 4.§ .. July 1, applicable language 19(?4, of PA No effective language verbiage new in force since 1885. 965, parallels stating “the of the State 1964 law in the highways, and the maintain commissions repair road therefor, portion highway' only shall extend improved sidewalks, and shall not include cross- designed- travel for vehicular *8 improved portion of, any outside of the installation walks other. duty, designed travel,” highway vehicular not lessen the 'for does the “improved portion highway authority keep of the the to of the repair, in in designed for vehicular travel” “reasonable condition for travel.” safe fit 16 Mich 365 App Opinion op the Coukt preme Joslyn City (1889), in Court Detroit Malloy Township 458,4 Walker 695). (6 Joslyn, 77 Mich LRA In the Court only held that is liable not “for injuries occurring through neglect keep to the streets repair, by but also such as occur of the reason condition, city neglect reasonably of the to streets its Joslyn and fit for In travel”. an permitted obstruction was in the to continue midst warning lights. language of the road without In guide which should clared us in this case, the Court de 461): (p requires everything [the statute] “It to done city necessary upon travel make its streets reasonably sary doing safe. If in so it becomes neces- place signals safeguards given or other at

points, give proper warning, duty other it is the city of the that it see is done or that the street imposed travel; is closed and that express language injury statute,' aris- ing neglect from the of such to the citizen will responsible municipality party make the jured.” in- Malloy carefully In history the Court reviewed the prior including decisions, those that effect negligence plan in the of construction, as distin- guished negligence from in the execution plan, ivas not actionable. It held that such earlier that case. in first word “good repair” and struck the not aware of the 3885 aet. words. read as did the 1885 and date Joslyn adopted (September 19, 1885) No “reasonably” accident Joslyn in 1885) as in the 1879 words 4. The in J regarded Court referred to the 1887 act but before “safe and oslyn “at all Joslyn later acts supportive act occurred 'the It is clear from the Court’s observations times” the 1885 language Court construed the 1879 aet which “reasonable except appearing of the conclusion it reached in convenient April, aet, of the 1887 act which act 1886 after repair”, the 1885 act after apparently and added the replaced the effective last-quoted (actually changed travel” PA *9 375 v. Opinion the of Court the enactment superseded by ease law had' been the and before language the then Court statutory now before us. Malloy in negligence

The .specific allegation authority road building the shows that' that quo, of the status beyond preservation goes design the affirmative to does indeed have it “reasonably safe keep the road and it construct and convenient for travel”. public Malloy in was that

The claim of specific negligence in not construct- was authority negligent the road an embankment. alongside barriers ing railings concluded that it was Supreme Court Michigan a decide or barriers railings whether jury for to. of the case then

were in the circumstances required Court, that even if the sur- Thus, at bar. ruled and con- engineered the road perfectly face of the road in a reason- structed, design the failure railings erection of manner, ably including .safe be an act of barriers, negligence: could cannot a “This statute construction given up- a or other township municipality, would relieve in keep burden is cast its highways travel, for from repair reasonably safe a method had of construc- by saying adopted A plan. and had munic- tion, built.,according unsafe dangerous cannot construct ipality public travel, not and convenient road, —one behind its legislative power —and itself shield building and method of and construct- adopt plan therewith. con- negligence accordance ing in the of the work or the manner sists, plan failure to done, provide but suit- which it was after accident the embank- able protection made. The statute imperative ment had been safe, make a road whether it is in reasonably, and fit for travel must be safety that condition under circum- proper jury, App Mich Opinion Court ” supra, p Township Malloy Walker, stances. jury may holding that the

For additional cases negligence find provide railings for failure the road or barriers needed see travel, safe and convenient Township Evergreen (1887), Sharp *10 Township (1895), 104 Mich Ross v. Ionia 443; of City (1904), 136 320, 324; Hannon v. Gladstone of (1913), Township Clam Lake 621; Lamb v. of Carpenter Township Mich 77; and v. Bloom ing (1924), dale 227 Mich 355. Township (1887), Harris v. Clinton 64 Mich jury anticipated Malloy holding 447, in that a 453, question'was presented au- as to whether the road thority place any negligent failing in “to bar- was warning” prevent persons driving rier or to from upon highway along and embankment which was washed and overflowed with water.' The Court de- : clared driving- “It should be remembered that the risk by off the' embankment when obscured the overflow greater driving- water was no than the risk of

.óf night.” off oh a dark driving And the risk of off the dead-end a.m., this case of Mullins at 3:10 the hour alleged greater than it accident, had been was.no if A overflown with water. short time Harris before Township supra, Clinton, v. decided was the Court - .observed: highways

“I have no doubt that the defects in by covered struction, repair, the act of extend defects in con ’ through as well as clefects omission neglect keep public highways and to See footnote 3. Waynk v. op Opinion the Court by reasonably fit for travel and safe condition kept, night; day it con- unless is so highway, if in- which, a defect in the stitutes jury & v. Detroit will lie.” Carver an action results, (1886), 590. 61 Mich 584, Road Co. Plank Saline supplied.) (Emphasis continuing early constructions That the Supreme are entitled to Court statute light approved regarded legislatively in the as sought subsequent which have re-enactments McEvoy change applicable language, see City 182. 136 Mich Ste. Marie Sault recently Joslyn McEvoy on in were relied Kowalczyk Bailey (1967), 379 Mich McEvoy quoted from follows: Court open constructions, one, act to two “This — municipalities obligation imposed upon an that it to use highways diligence streets and fit in a condition travel; palities only upon imposed munici- that it other, diligence obligation díte to use repair. good lceep highways *11 and streets be an ob- there would construction, the first Under part municipality ligation of a to remove on the had after it within a reasonable obstructions time (cid:127)knowledge their existence. Under or notice of obliga- would no such construction, there be second City (1889), Joslyn In of v. Detroit tion. 74 Mich the case deliberately adopted the first this Court construction.” dissenting Kowalc&yk to the referred

The Court McEvoy opinions Joslyn that in observed pre- of the dissenters never have “the views two in this vailed Court.” principle emerges is that that as its

The the road safe to construct public the road travel and convenient Arp op Opinion the Court points provide required at such devices is necessary especial danger may warn the be ’to roadway margins end or driver where of the prevent leaving the his vehicle from road. alleged county’s negligence plaintiff

Here the failing warn- to erect a visible barricade ing to terminate. Until that the road was about plaintiff no court can heard, is the evidence decide whether sufficient negli-

evidence causal gence jury introduced to make .the pleaded whether the issue absence n , nn signs negligence. such barriers opinion completely statutory prior ignores kept reasonably requirement that the road be According that travel. and convenient any opinion make difference whether the it doesn’t river, or leads over a cliff into Detroit road railings barriers, or whether whether there are manifestly against. dangerous are warned conditions accept argument made the defendant that position “every plaintiff’s de ance of would mean the surface of a must the direction or viation negli subjected a trier of fact for test be every contrary gence” law, assumes, to the be submitted to the absurd, however must claim, every jury. deviation direction course, Of jury. go the suitor will not entitle surface railings where it was claimed In cases several Supreme required, Court ruled were or barriers evidentiary showing plaintiff’s was inad that the permitted jury equate would and that a negligence their absence. from infer Canfield Township 384; Mich Plains Gun (1928); Township 242 Mich 46. Richland Vose a “deviation-in-the-direction-or-sur- is not Ours terminating In case. This is face” case. *12 negligence of causal evidence events, all whether Wayne County op Opinion the Court particular go jury in a case entitles one to to the question judges is still a of law for the court. Trial appellate greater and the courts will have no dif- ficulty distinguishing against an insubstantial case myriad than in of other cases required courts are to decide whether the where- justified jury evidence determination. (1943), In Goodrich v. Kalamazoo distinguished

Mich the the Court earlier cases ground practically that “in all of them the ac- cident resulted from a claimed in defect the traveled portion highway, proper of the or incident to some language entirely use shoulder.” That was appropriate in Goodrich where the tree perfectly which the collision occurred “was a visible object point and a to the that at that pertinent only the shoulder was available for uses to the width of feet”. 2-1/2 Township in Court, Goodrich Canfield supra, Township Plains, Gun and Vose v. Rich supra, simply

land, declined to let the negligence go jury the defendant’s on the presented. facts case there In contrast, it is manifest that a reasonable trier of fact would justified concluding in road, such as the abruptly road in this case, ends without warn ing, kept has not been constructed Compare Alpena City manner. Sebert v. stump 78 Mich where was claimed a standing part” “so near the traveled of the street dangerous night time. The Court held that: applies

“The statute defects in construction as neglect repair well as to when the road is unsafe; * * * dangers surrounding the traveler night darkness are conditions that should be taken into consideration authorities whose *13 App 365 16 Mich 380 Opinion op the Court repair Iceepin the road- duty is to construct supplied.) (Emphasis way.” jury whether for the awas and that it negligent. city had been “flagrant applies defects to the statute That neglect in as as well construction,

method of (1895), City repair”, Port Huron see Schrader per- should be The trier of fact 106 Mich sign failure erect whether the mitted to decide coming an that the road barrier flagrant in construction. defect end was every-devia- prior opinion hypothesizes the At case. tion-in-direction-or-surface-of-the-road highway spectrum there is the of the end other edge river’s terminating a cliff or at the at the warning. edge In a case could such without due duty say no because there was heard that we be empty the unfortunate air in which or water the traveler the traveled part of demise was not to his

descended portion highway? of the

II. signal adopted Michigan the uniform traffic When [Stat (MCLA Ann 1960Rev control statute 9.2310])',' of traffic- which authorizes the erection sign-erecting in the discretion devices control authority, thereby the road author- not relieve it did ago imposed years ity duty 75 over to con- keep reasonably the road and con- struct v. Watson travel. State See venient 175). (436 App (1968), P2d Ariz 81 City argument Detroit in O’Hare v. there before the that the case Court 19, 23, strong missing particularly because the one awas does, stop sign erected had once been constitute holding need never be erected Opinion by J., Dissenting C. -Lesinski, Quinn, keep instance first the road reasonably safe. principle repeals by

It well-established prior opinion implication are not favored. The acknowledges signal that the uniform traffic control imposes upon and the statute which statute road authorities the jurisdiction roads under their repair safe and con- *14 public pari not in venient for travel are materia. permitted The road should no more be signal to use the uniform traffic a control statute as statutory liability its shield to for construction authority Malloy of an unsafe road than the road unsuccessfully sought which to “shield itself behind power adopt legislative plan its building and method of constructing in accordance therewith.” Township Malloy supra, p Walker, of foregoing judgment all For reasons the trial court is reversed and the cause remanded appellant. for trial. Costs to R. B. H. J. and Levin, Burns, Fitzgerald, Gtllis, with

JJ., concurred T. Gr. Kavanagh, J. (dissenting). J.C. and Quinn, Plain- J. Lesinski, complaint against county tiff Wayne, filed a of Wayne county board road commissioners, Clar- complaint, ence Sell and Lois M. Sell. The sought liability wrongful to establish under the (Stat act, death CLS Ann 1962 Rev § 27A.2922), alleged plaintiff’s decedent, at April traveling 3:10 a.m. 27, 1964, on was in a southerly Taylor direction on Mortenview road in township; said Mortenview road was a term- highway, inating county and that defendants Wayne board road commissioners failed any post suitable warn- devices App 365 16 Mich J., Dissenting Opinion C. Lesinski, Quinn, terminating highway. ing that said road was a complaint as a result of defend- further stated that existing danger on to warn of this ants’ failure plaintiff’s driving on was road, decedent, who stop turn at the road, said Mortenview failed to with a terminus of said road and collided placed by harrier M. and Lois Sell defendants Clarence property road, at end Mortenview death. that this collision resulted his county Wayne Wayne Defendants, and board of commissioners, filed motion for sum- they post mary judgment, asserting had no warning signs or devices at the terminus Morten- granted, and heard, road. The motion was view summary judgment granting an of no cause order county of of action as to defendants Wayne county commissioners board of appeals. entered. Plaintiff The issue before the Court is whether the author- jurisdiction highway ity having over the charged negligence by failing with can be to warn the virtue highway. the terminus of the sought to be enforced defend- *15 purely statutory; derogation the statute is in ants is of struction. enlarged by law cannot the common and con- County Kalamazoo Goodrich 304 Mich 442. duty as evidence of the

Plaintiff offers the provisions county to warn of road’s terminus (Stat 9.121) § § 224.21 Ann 1958 Rev of CLS provide part: in which hereby duty “It made the of the counties to repair, they

keep in reasonable so that shall be rea- public sonably travel, and convenient for all bridges county and roads, culverts that are within contro] jurisdiction and under their care and their open provisions are travel. The and J., Dissenting Opinion C. and Lesinski, Quinn, townships, respecting law cities, damages villages corporations injuries and resulting same performance from failure respecting roads under their shall control, apply adopting sys- such to counties (Emphasis supplied.) tem.” supra, interpreted by Goodrich, As this statute part no on the signs to do creates the defendants Negli- anything warning about devices. gence requires duty. breach supra, conjunction

In 1961, 224.21, with CLS plaintiff (Stat cites CLS Ann 1960 9.2310) statutory authority establishing §Rev as duty plaintiff contends with defendants have respect devices. latter part: statute reads “Local authorities commissions respective jurisdictions place

their shall and main- upon highways tain such traffic-control devices under jurisdiction they may necessary to in- deem carry provisions chapter dicate and or local out of this regulate, warn, traffic ordinances or to guide All traffic. such traffic-control here- devices after erected shall conform to the manual State (Emphasis specifications.” supplied.)

This statute is of the vehicle whose code title-expressed purpose regard pro- in this is “to regulation high- vide for the and use of streets and ways.” quoted portion The section is found in a system dealing the code with a uniform of traffic- says devices, control and it no more than local given place authorities are discretion to and main- highways tain traffic-control devices on under their jurisdiction carry pro- indicate out the visions of the code or local traffic ordinances or to regulate, guide they warn, or traffic. If so, do spec- devices shall conform to the State manual and *16 App 16 Mich Dissenting Opinion J.,O. Lesinski, Quinn, provided (Stat § 1961, ifieations CLS 257.608 Aim 9.2308). § 1960 Rev (Stat 9.121) § 1961,

CLS 224.21 Ann 1958 Rev (Stat CLS Ann 1960 Rev § 9.2310) pari cannot be read in materia to create duty plaintiff asserts defendants in this bear action because the statutes do not relate to the same thing they purpose. City nor do have a common of Michigan Telephone Company (1965), Detroit v. Bell 374 Mich 543. by plaintiff of support

None cases relied theory liability of asserted in this action. City (1960), O’Hare v. Detroit in of highway authority volved the failure of the to re place previously stop sign; Joslyn City erected Detroit 74 Mich 458, involved an obstruc placed upon improperly tion allowed to remain Long highway; on the street v. Mecosta (1924), 228 Mich bridge 542,involved washed-out ; Rogers Township (1919), Jewell v. 208 Mich 318, deep involved a highway by trench cut across an established quarry company. In each of these cases the road had maintained the road in a certain condition, and the found was to continue properly the road in that condition or any changes warn the that created a dan gerous condition. This is not the case before us. acceptance plaintiff’s theory this case every would mean that failure to warn of deviation in the direction or surface of a road creates respect highway fact with authority’s negligence litigation. in accident This we applicable decline to do face statu- tory provisions. may

It well be that current traffic conditions and driving habits dictate that defendants should have plaintiff here but asserts, that is for *17 Wayne 385 Dissenting Opinion J. by Holbkook, say. legislature not for It is this Court to by enlarging the statute establish such construction.

Summary judgment proper was under existing law. without affirm, involved. costs, but vote to We being with C. J. concurred J., Lesinski, McGregor, J. Quinn, (dissenting). After careful review J. Holbrook, applicable the instant of opinions my law case necessary judges, I find it brother separate matter further deal with the this to opinion. repeated in Mullins v. are as stated The facts App County (1966), Mich 361: complaint against “Plaintiff filed Wayne county Wayne, commissioners, board of road complaint, The Sell. and Lois M. Clarence Sell. wrong- sought which ful death to establish under (Stat Ann 1961, 600.2922 act, CLS 27A.2922), plaintiff’s alleged decedent, Rev that traveling April in a 27, 1964, on 3:10 a.m. at Taylor southerly Mortenview road in direction on township; road was a term- said Mortenview highway, inating and that defendant Wayne county failed commissioners board any post or devices warn- suitable highway. terminating ing road was a that said complaint a result of defend- stated that as further danger existing on the warn of this failure to ant’s road, Mortenview driving plaintiff’s said who was decedent, stop or turn at the term-

road, failed placed and collided with a of said barrier inus by Clarence and Lois M. Sell on their defendants property road, at end of Mortenview death, collision resulted his this App 16 Dissenting Opinion by IIolbkook, county Wayne “Defendants, and board of Wayne county road commissioners, filed a motion summary judgment, asserting they for to bad no post warning signs or devices at the terminus of granted, road. Mortenview The motion was heard, granting summary judgment and an order of no county Wayne cause of action toas defendants Wayne county and board of road commissioners was appeals.” entered. Plaintiff legislature early in its wisdom, as as 1893,1 *18 granted abrogation governmental limited immun- ity county improper as to suits for main- county tenance of roads. The act has been amended many present § In times. its form, 1961, CLS 224.21 (Stat 9.121) provides § Ann 1958 Rev for the lia- procedure bility, remedy county as to roads jurisdiction county under the of a road commission. pertinent part It reads in as follows: hereby “It is made the of the counties to keep repair, they in reasonable so that shall be rea- sonably county public safe and covenient for all travel, bridges roads, and culverts that are within jurisdiction their and under their care and control open provisions and which are to travel. The respecting liability of law townships, the cities, villages corporations damages injuries for for resulting performance from a failure in the of the duty respecting same roads under control, shall apply adopting county to counties sys- such tem.” legislative granting abrogation This act limited governmental immunity changed by has not been rulings Supreme Myers the of onr Court in v. Gen- County (1965), esee Auditor 375 Mich 1 and Wil- City liams v. Detroit 364 Mich 231. The liability Wayne county of defendant is therefore 149, No 1 PA 1893, 38?

Í969] Opinion by Holbrook, Dissenting upon based the failure a cause of action restricted comply the with road commission present with the This decision is consonant statute. immunity governmental in this State.2 law as properly complaint, in state order Plaintiff’s negligence against defend- of action cause grounded must be CLS ant 1961, § complaint § (Stat should Rev Ann 9.121). (1) highway allegations was not contain reasonably safe and fit in a condition maintained herein reason of to that determined law is identical Present July 1, 1965, 170, whieh was enacted for the effective No PA liability municipal corporations, making “uniform purpose of subdivisions, State, agencies departments, and the its political function, injuries property governmental engaged in a when liability; by negligence; limit such persons to define and caused liability engaged in a limit of the State when to define provides in relevant as function.” It follows: proprietary governmental agencies provided, all “Except in this act otherwise as liability gov- gov- in all eases wherein said immune from tort shall be discharge agency engaged in exereise and of a ernmental Except herein, provided as otherwise this act ernmental function. shall the restricting immunity modifying not be construed heretofore, immunity tort as it existed State from (Stat 170, 7; hereby PA No MCLA 691.1407 affirmed.” is Ann 1968 § Supp 3.996[107]). Gum agency having jurisdiction any highway governmental over “Each repair highway in reasonable so that it is rea- shall maintain publie Any person sonably travel. sustain- safe and convenient damage injury property ing bodily to his reason of failure of any highway jurisdiction agency under its any governmental *19 repair, and in condition safe and fit for in reasonable damages by govern- travel, may mental him from recover the suffered such county liability, procedure remedy ageney. The and as to jurisdiction county of a road commission shall under the be roads 21, chapter 4 of No 283 of provided section Act the Public Acts as of 1948, (Stat amended, being 224.21 Ann 1958 1909, CL Rev as § county 9.121). of the State and the road commissions The § highways, liability therefor, shall repair and maintain the highway designed only improved portion of the for extend sidewalks, any or and shall not include crosswalks vehicular travel improved portion highway of the of the outside other installation brought against designed travel. No action shall for vehicular injury except for or loss suffered on or after this section State under Any judgment on a July 1, the State based claim high- arising from or omissions of the State under this section aets only ap- way payable from department shall be restricted funds highway department provided by funds propriated its the State or (Stat 1964, 170, 2; 691.1402 PA No MCLA Ann insurer.” § § Supp 3.996[102]). 1968 Cum § Apr 365 Mien LMar Dissenting Holbrook, by Opinion or notice knowledge has comity travel, (2) of the dan- or notice knowledge had have

or should failed, or refused, neglected which it condition gerous were to plaintiff injuries or injury correct, (3) county’s caused fact proximately caused sus- (4) plaintiff duty, breach alleged tained damages. summary judgment trial granting court’s plaintiff’s in that proper of defendant was favor it failed to allege because was deficient

complaint above. elements outlined the second and third bases her cause complaint, her Plaintiff, by claimed violation defendant CLS action on a Ann 9.2310 (Stat 1960 Rev (a) § 257.610 subd § as follows: which reads [a]) subd county “Local authorities commissions shall main- jurisdictions place in their respective under upon highways tain such traffic-control devices deem jurisdiction they may necessary provisions indicate and to out this carry chapter regulate, or local ordinances or traffic All de- warn, guide such traffic-control traffic. vices hereafter erected shall conform to the state manual and specifications.” (Emphasis supplied.) statute and traffic- foregoing providing signs is not a part control devices of CLS 224.21 1961, § Ann 1958 Rev (Stat 9.121) providing liability § nor is it therein incorporated by reference or other- wise. Absent based liability upon reference, with failure of the to create legislature liability for its failure to place signs or traffic-control devices on its in the act highways itself, no can be imposed. CLS (Stat 257.610 subd Ann (a) 1960 Rev does not subd[a]) mandatorily require road commission to place traffic-control or de- *20 Dissenting Opinion by Holbrook, highways jurisdiction. Although under its vices oil may county be advisable for a road commission it to

“place and maintain such traffic-control devices jurisdiction highways they may upon under their carry pro- necessary and to out the to indicate deem chapter local ordinances or this or visions traffic regulate, guide warn, or its efforts traffic” occurring on of traffic accidents reduce the number its effectively highways and to defend lawsuits claiming the duties im- failure on its to meet (Stat upon posed virtue of CLS required. 9.121) Ann not such action is 1958 Rev supplied.) (Emphasis may

Arguendo, herein have the defendant faulty possible for the claimed avoided maintenance of Mortenview road, construction by simply determining terminating highway, a sign erecting a traffic-control de- for and need e.g., stop sign, that all a at the intersection so vice, using Mortenview road would have been vehicles stop turning required onto the intersect- before stop sign placed ing highway. been Had such point terminating of Mortenview at the maintained possibility of a lawsuit the defend- road, negligible. would have been herein ant county road commission The failure proper sign place traffic-control and maintain possible deprive may defense defendant of device plaintiff grant a cause does but such failure the laiv. under action summary judgment of dismissal in favor of costs, affirmed. should be No defendant being involved.