60 Mich. 214 | Mich. | 1886
This ease, which was before .us and decided at the January term, 1885 (55 Midi. 552), now comes up again after a new trial. Several assignments of error appear on the record, but counsel for defendant, waiving the rest, desire only a consideration of such points as relate to the legal sufficiency of the bridge which broke down under plaintiff’s machine, and the notice of its condition.
The record now differs very considerably from the former one in filling up some gaps, and in fixing the matters then left in doubt as to the surroundings more definitely in favor of plaintiff. The effect of these variations was, no doubt, fully argued to the jury, who have again found for plaintiff. We have nothing to do with their conclusions of fact, and can only refer to the law questions submitted.
Upon the argument before us, complaint was made that the township was made liable upon a theory that it was bound to build bridges capable of bearing heavier weights than were fairly to be expected to cross them; that this bridge having been built before the present law was passed requiring townships to keep bridges in repair,
We held in Fulton Iron Works v. Kimball, 52 Mich. 146, that the law of 1879 did not require townships- having bridges to change their plan or capacity, or to build bridges for unusual loads. But in the present case there was no dispute in the testimony that the bridge in question was built on a plan adapted tpjallow loads of the weight in question to cross safely, and that they had crossed repeatedly. The stringers were large and apparently substantial. The
The only remaining question, therefore, is as to notice of the deficiency. Upon this question, also, the complaint is not based so much on the failure to lay down correct legal principles as to their inapplicability to existing facts.
In this respect, also, the testimony appears to be a good deal stronger than before.
There is some conflict concerning the time within which timbers of the kind used will decay, and some apparent controversy as to what timbers were actually used. That they rotted in fact is not disputed. It appears affirmatively that in June, 1882, some three or four months before this accident, the overseer, Cornelius Bathbun, accompanied by Thomas Beattie and John Connor, made some repairs to the bridge. Some of the planks were removed and replaced, and the north stringer being examined, was thought somewhat defective. It was not removed, but a smaller beech stringer was put in beside it. No examination was made of the rest of the stringers, or of the ends of any of them. The witness Beattie, who upon the former trial fixed the time of a certain conversation about the importance of a new bridge at a later period, said on this trial that it was referred to while these repairs were going on.
We think that it might be argued to the jury upon these facts whether the occasion of making repairs, and the discovery of defects, did not require the overseer to make a more careful examination of the whole bridge. It is evident that if the bearings of the stringers had been examined, their condition would have required them to be removed or repaired ; and it was a legitimate argument that the discovery of rot in one stringer, away from the ends, might suggest its existence at that part of the timber that according
We discover no error in those matters on which reliance was had for reversal.
Plaintiff, however, by his counsel, very strenuously insisted on damages for a vexatious and groundless appeal. We do not think the appeal can be so regarded. There was much in the testimony open to criticism, and the defense does not appear to have been without foundation.
The judgment is affirmed.
Act 244 Session Laws of 1879; How. Stat., Secs. 1442 et al.