55 Mich. 552 | Mich. | 1885
This is an action on the case to recover damages for an injury sustained while crossing a bridge over a culvert, with a traction-engine, in the public highway, in the township of Keene, in the county of Ionia, on the 2d day of October, 1882. The bridge was built in 1877, and was about fourteen feet wide and supported by four stringers, three of which were rock elm and the other beech. The
Upon the trial the plaintiff’s claim was that the bridge was not reasonably safe and fit for travel, and that the officers whose duty it was to see that a safe bridge was provided, of sufficient strength and durability for the passage of the plaintiff’s threshing-machine and engine, and kept in repair, did not exercise ordinary care and diligence in the performance of such duty, after due notice of the defects complained of, and that he received his injuries in consequence of such official neglect and want of reasonable care. The defense was that the bridge was reasonably safe and fit for travel, and was of sufficient strength for such loads as it was designed to sustain and ordinarily passed over it; that it would not have given way but for the carelessness and negligence of the plaintiff in suddenly driving thereon close to one side with his extraordinary load propelled by steam. Upon these two theories the case was tried, resulting in a verdict of $4QOO for the plaintiff, and the defendant brings error.
There does not seem to be any serious contest as to how the injury occurred, nor as to the duty of the township in a case
The duty required of township officers in the premises, and the knowledge or notice necessary to require them to rebuild or make necessary repairs, and the character of the negligence by them, raising a liability on the part of the township, resulting from such negligence, were very forcibly discussed and clearly presented by Chief Justice Graves in Medina v. Perkins 48 Mich. 67. The case was, in many of its features, very similar to the present.
That the bridge in this case was defective, I think very clearly appears from the undisputed testimony, giving the result of the examinations made after this injury occurred. It is claimed, however, that the township officers had no sufficient knowledge or notice of the defect; that actual notice of such defect to the officers was required, and the lapse of reasonable time to make repairs, after the same was received, to create liability on the part of the township. Upon this subject Chief Justice Graves says: “ A township must know and act through its officers, and the mode and range of choice of these officers is prescribed by law, and it would be outrunning the Constitution and the course of legislation under it to expect greater qualifications than the average of township communities possess. Through its officers a township may know of the existence of a defect in a way or bridge, and where such knowledge is gained the township may become liable for negligence in not repairing. On the other hand a defect may exist and be unknown and the town still be liable on the ground that the prime fault consists in being ignorant; it being a clear principle that a want of knowledge
In these views I fully concur. It is contended, however, by counsel for defendant, that the evidence of notice ox-knowledge on the part of the plaintiff was impx-operly received; that it consisted of statements made by the commissioner to third pei-sons, after the injury complained of had occurred, and not while in the discharge of his official duties. Numerous objections were made to this class of testimony, and exceptions taken to the- rulings of the Gourt in admitting it. The circuit judge, also, in his charge referred to this testimony as px-oper for the jury to take into consideration in determining the question whether the defendant did or did not have notice or knowledge of the defect in the bridge. I think the testimony was improperly received, under the objections taken, and its admission and the chai-ge of the circuit judge wex-e error. It is true, there was other evidence in the case tending to show knowledge of the defects claimed on the part of the commissioner, but we have no means of knowing that the erroneous testimony was not considered by the jury in finding sufficient notice to make the defendant liable; and it would be um-easonable to suppose they did not consider the erroneous testimony after
In this case it appears -that the accident occurred in consequence of the rotten condition of the three stringers, and nothing appears in this record showing this to be, in any of its circumstances, an exceptional case, or that the decay was any more than might have been expected from natural causes, taking into consideration all the facts. And such means should be employed by the officers from time to time, in making their examinations, as usually disclose the defects to be expected. Rapho v. Moore 68 Penn. St. 404.
It is not necessary, in order.to charge the township for the injury received, to show that the commissioner of highways, or the overseer, had previously been informed by some person of the defects in the bridge, or that they or either of them had actually seen the bridge, or had knowledge of the defects. It is made their special duty, when these defects exist, or are likely to exist, to examine and ascertain them, and immediately make the necessary repairs. It is only necessary for an injured party to show upon the subject, by proper testimony, knowledge on the part of the officers of such a state of facts as reasonably and necessarily make it their duty to examine and act, in order to protect the traveling public, and their neglect so to do. Whether or not a new bridge is necessary may depend upon different considerations, and the question is one upon which men may widely differ, and may or may not be under the control of the overseer. But when a bridge has once been built, there can be no question about the duty of the proper authorities to keep it in repair. Seasonable care only is required of the officer of the town. And that may be relied upon for the purpose. Such care requires the use of the ordinary and proper means in detecting defects, and when they are disclosed, either by such means or by other notice of their existence, diligence in making the necessary repairs.
The court charged the jury in the following language upon the subject of negligence of the plaintiff: “ Did the negligence of the plaintiff contribute to the injury ? If it did, he can
The plaintiff’s steam-engine was ordinarily propelled by steam, as well as moved by horses, when passing from one job to another. It was claimed by defendant that in descending the down grade and approaching the bridge the plaintiff went too fast; that he had the steam on, and that this contributed greatly to the downfall of the structure. When the plaintiff was on the stand, his counsel showed by him that before they got to the bridge — indeed, at the summit of the grade — he ordered his engineer to shut off. the steam, and that the engineer told him he had done so, and that the machine went down the grade and to the bridge controlled by the horses alone, which plaintiff was driving. This statement of what took place was objected to by defendant, and so much as purported to be the statements of the engineer was stricken out, and the statement of plaintiff allowed to stand. This was proper. It was part of the res gestee of of the transaction, and it being at the very time and occasion the injury, it is difficult to say why what both said was not proper for the same reason.
The defendant’s eighteenth request was refused, and an exception taken to the ruling. The request was as follows: “ If the jury find that the plaintiff had previously had a guard to prevent the foot of the driver from slipping off the foot-rest, or coming in contact with the traction-chain, and afterwards removed it before the accident, or if the plaintiff was aware that without some sort of protection there was danger upon- any sudden jolt of the engine of the foot slipping off the foot-rest and getting caught in the traction-
No other errors appear in the- rulings or charge of the court requiring further discussion; but for those mentioned
The judgment must be reversed, and a new trial granted.