30 Mich. App. 396 | Mich. Ct. App. | 1971
Plaintiff was injured when she caught her right foot on a steel pipe protruding from one. of defendant’s sidewalks (all witnesses save one testified that it could have been a sleeve).
The hollow steel pipe and surrounding tapered concrete collar were what remained of a street sign which had been removed some five months before the accident. There was conflicting testimony at trial as to the height of the remaining portion of pipe as well as conflicting testimony about the height of the collar.
Briefly, it was plaintiff’s claim that the defendant city was negligent in maintaining, or failing to correct, the defective condition complained of.
At the trial of the case, the following instruction, of which plaintiff complains, was given by the court:
“As a matter of law in the State of Michigan, no court will hold a municipality liable in any way whatsoever if a defect, whether it be a depression or elevation, does not exceed two inches in depth or elevation. Therefore, you can see that even a two inch depth or elevation or crack, does not allow any traveler to collect any damages from the city and this is the law. Beyond two inches, the courts allow a jury to decide whether or not the depression or elevation is a defect and if it was a proximate cause of the accident and injuries resulting therefrom.”
The jury was then instructed that if they found the pipe did not raise up more than two inches, they had no alternative but to return a verdict in favor of defendant of no cause of action. But if they found a rise of over two inches they could find negligence on the part of the defendant municipality.
A verdict of no cause of action was returned, and plaintiff appeals.
As the height of the projecting steel pipe was a fact question for jury determination, its verdict could have meant either (1) that the pipe was less than two inches high and, as a matter of law, defendant was not negligent or (2) that the pipe
The instruction given was based on a long line of Michigan cases
The rule has been applied where a metal grating was a part of the sidewalk. Northrup v. City of Pontiac (1909), 159 Mich 250.
Accordingly, in addition to the two questions mentioned above, the jury in this case should have been instructed that it should determine whether, at the time of the accident, the surface or object was of a design to be walked upon. In determining that question, the jury should have been told that it could decide that the surface or object was, at the time of the accident, reasonably adaptable or
Defendant has cross-appealed, claiming that plaintiff failed to offer any evidence of giving proper notice to the city. The sufficiency of the notice was already passed upon by this Court in Rule v. City of Bay City (1968), 12 Mich App 503. The record in this case shows that the notice was filed; that is enough.
Reversed and remanded for a new trial.
Costs to plaintiff.
PA 1909, No 283, ch 22, § 1 as amended (CLS 1961, § 242.1 [Stat Ann 1958 Rev § 9.591]), subsequently repealed by PA 1964, No 170, read as follows:
“Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of negleet to keep such public highways or streets, and all bridges, sidewalks, cross
See footnote 1 in our opinion in Howard v. City of Melvindale (1970), 27 Mich App 227.
See footnote 2 in Howard, supra.