111 Mich. 693 | Mich. | 1897
The plaintiff recovered a judgment of $2,500 for injuries received while in the employ of
First, that the construction of the sewer was the exercise of a governmental function, and that the city is, therefore, not liable.
Second, that the plaintiff assumed the risk of the employment in any event.
Third, that the verdict given in the case is not a lawful ■ verdict.
“ It is to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes^ or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city. They belong to the city. The corporation and its corporators, the citizens, are alone interested in them. The outside public, or people of the State at large, have no interest in them, as they have in the streets of the city, which are public highways.”
It may be added that, as to the sewers constructed under the charter by the city of Lansing, they may be also a source of revenue. See, also, Barron v. City of Detroit, 94 Mich. 601 (34 Am. St. Rep. 366); Baker v. City of Grand Rapids, ante, 447.
“ It cannot be said that he [plaintiff] assumed the risk, when he was ignorant of facts on which, perhaps, a proper appreciation of the risk depended. Whether he was or was not ignorant of them, or whether he could have failed, in the exercise of due care, to observe the
See, also, Parkhurst v. Johnson, 50 Mich. 70 (45 Am. Rep. 28); Norfolk & Western R. Co. v. Ward, 90 Va. 687 (44 Am. St. Rep. 945).
3. The record shows that, after the jury had been out all night, the following occurred:
“ Foreman: I am instructed to inform the court that we have arrived at a compromise verdict, if the court will receive it. We could not arrive at a verdict in any other way. If the court will receive it, we will give it, and, if not, we will have to retire. * * *
“ The Court: Mr. Foreman, please state a little more fully what you mean by a compromise verdict.
“ Foreman: The balance stood the same since we went out as it did a short time since. They agreed to do certain things, provided it could be given as a compromise verdict, and the court would accept it. I don’t think there is any likelihood of our ever coming to any other verdict.
“ The Court: I think I will take the verdict.
“ Clerk: For whom do you find?
“ Foreman: We find for the plaintiff.
‘ ‘ Clerk: How much ?
‘ ‘ Foreman: One hundred dollars for medical services, and $2,400 damages.
“The Court: That makes $2,500.”
The jury was then polled, and each juror, as his name Avas called, responded to the question, “ Is this your verdict?” “Yes, sir,” except Theodore Weston, who responded, “Compromise verdict.” Just what was intended by this juror it is somewhat difficult to understand. It is said by plaintiff’s counsel that it is a matter of common knowledge that verdicts are often the result of compromise. In a sense, this is true, and perhaps it is not to be condemned, if, after the members of the jury have canvassed their views, they are able to conscientiously yield their first impressions, and reach a result, the responsibility of which each is finally ready to assume. But it never ought to be permitted that any member of the panel should shift his responsibility by placing it
Judgment reversed, and- a new trial ordered.