O'Neil v. Township of Deerfield

86 Mich. 610 | Mich. | 1891

McGrath, J.

While plaintiff was driving with a load of stone over a bridge in the defendant township, one of the stringers gave way, and plaintiff was injured. He brings this suit, claiming that the bridge was improperly constructed, and that defendant negligently allowed the bridge to remain in a condition not reasonably safe and fit for travel. The court directed a verdict for defendant, and plaintiff appeals.

It seems that the plaintiff was driving on the westerly side of the bridge, closer to that edge than was usual to drive, and the westerly stringer broke. Plaintiff’s own testimony shows that there was nothing about the stringer that indicated any weakness of the timber before it broke. It had the appearance of a sound stick of timber, and, although rotten at the heart, it had from two to three inches of sound timber around, the outside, and when it broke it splintered two or three feet each side of the break. There was no evidence tending to show that any person questioned the strength of the bridge before the accident.

The testimony on the part of the township was that this stringer was about 12 by 14 inches in thickness, hewed on two sides; that it extended over a 22-foot span; that it was cut from a dead standing pine tree, and placed in the bridge in 1885; that it was sound at that time; that in 1886 the bridge was examined by the township authorities, and two new center stringers placed therein; that in 1887 the plank were removed from the bridge, and the stringers were all cleared, tested, and examined; that in April, 1888, the owner of a traction-engine, weighing nearly three tons, made a thorough examination of the bridge, satisfied himself regarding it, and took over his engine; that shortly after this the township authorities examined the bridge and stringers, and tested them, and to all appearances this stringer, with the others, was in good condition and sound. At •all of these examinations the tests were made by pounding on the timbers with an axe. The accident occurred to plaintiff about two months after the last examination.

The court held that the evidence did not show either knowledge or notice to the township, and that plaintiff could not recover. I think that the circuit judge was correct. The stringer in question had been in use but three years, and had been examined with reference to its soundness but two months before the accident. There was nothing in the general appearance of- the timber, or of the bridge, to indicate any weakness. Several teams were engaged in drawing stone over the bridge on the day before as well as on the day of the accident, and no one had discovered or suspected any infirmity therein. The township had neither constructive notice nor constructive knowledge that the stringer was defective.

While the age of a bridge may suggest probable infirmity, and impose the duty of inspection upon a township, and its condition may be such as to charge the township with knowledge, yet the township cannot be charged with knowledge or notice in the absence of anything that is suggestive of weakness, and in spite of the lack of knowledge of or notice to either its agents or the general public, while at the same time positive acts on the part of the township are shown indicating proper care and careful inspection.

Plaintiff introduced testimony tending to show that, some 18 months after the accident, one O’Brien, who was the overseer of highways at the time of the accident, had said that he had not regarded the bridge as safe; but, under the rule laid down in Stebbins v. Township of Keene, 55 Mich. 552, this testimony was improperly received.

The judgment is affirmed, with costs.

The other Justices concurred.