Burns v. Township of Van Buren ( 1922 )

Sharpe, J.

The plaintiff had verdict and judgment for $2,500 as damages for injuries sustained by being thrown out of a buggy at or near the intersection of the “Romulus road” with the “Coy road” in defendant township, due, as she claims, to a “washout” or “gully” in the highway, rendering it not “in a condition reasonably safe and fit for public travel.” The duty of the defendant under the law (1 Comp. Laws 1915, § 4586) to so maintain the highway is pointed out and attention called to section 4584, which makes the township liable for injuries due to a neglect to perform such duty. Defendant denies that the highway was out of repair and insists that plaintiff’s fall was caused by her horse becoming frightened and by the right wheels of the buggy being outside the traveled portion of the highway. These questions were submitted to the jury in instructions of which there can be no just cause for complaint. The burden of proof as to both was on plaintiff. Defendant moved for a new trial for the reason, among others, that the verdict was against the great weight of the evidence. It assigns error on the denial of such motion.

1. Plaintiff’s witnesses testified that there was a “washout” at the place she was thrown out, that it was about 2 feet wide and from 7- to 10 inches in depth, that it extended across the traveled portion of the highway, varying slightly in depth. A number of witnesses called by defendant testified that there was no depression whatever in the highway at the place plaintiff received her injury. While it does not appear that any of plaintiff’s witnesses made any actual measurements of the width or depth of the washout testified to by them, neither does it appear that any of the witnesses for the defendant visited the place soon thereafter for the purpose of ascertaining its condition. The conflict in the testimony presented a question for the jury. Under the instructions given, they must have found that the highway was not “in a condition reasonably safe and fit for public travel.” The majority of my Brethren are of the opinion that such finding is not so contrary to the great weight of the evidence as to justify this court in setting it aside.

2. It is also urged that the testimony clearly establishes the fact that the horse became frightened at the noise of a cement mixer in use near by and was beyond her control at the time plaintiff fell from the buggy. The court charged that if the fright of the horse was the proximate cause of her injury plaintiff could not recover. She testified that when the horse heard the noise “he simply braced up a little bit; I held up the lines and he went right along. * * * My horse was just going along at an easy gait;” that after she got up out of the ditch into which she was thrown “the horse was walking along the road. * * * The wagon did not turn over.” She had a small child with her in the buggy. There was testimony of a number of persons that she told them the horse became frightened and ran away. We think this question was for the jury.

3. Defendant claims there was error in the court’s refusing to direct a verdict in its favor for the reason that if the highway was out of repair there was no proof of actual notice of that fact to the township officials or any proof from which constructive notice could be presumed. Frank Miller, a justice of the peace in defendant township, testified that he “noticed that washout there or gully. Prior to July, 1917. * * * It was in the month of June.” Henry Carpenter testified that it was in the same condition for “two weeks, more or less.” The pathmaster, Franklin Robbe, who lived about a mile distant, testified that he made an inspection of the roads in his district “once a week, on an average.” Edward O. Leonard, the highway commissioner, testified that he “examined that road during that year once a month.” We think the proof submitted justified the submission of the question of constructive notice to the jury.

4. Error is assigned upon the refusal to give certain requests preferred by the defendant. While some of them might well have been given, in view of the charge taken as a whole we cannot say such refusal constitutes reversible error.

5. We are asked to review the clerk’s taxation of plaintiff’s costs. That we can only do after the trial court has passed upon such action. See Circuit Court Rule No. 65; Niblock v. Saginaw Circuit Judge, 187 Mich. 423, and cases cited.

The judgment is affirmed.

Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred. The late Justice Stone took no part in this decision.

On liability of municipality for injury to person or property of one driving over defective highway where his horse is frightened without fault of either party, see notes in 8 L. R. A. (N. S.) 77; 29 L. R. A. (N. S.) 199; L. R. A. 1915D, 243.