Harry v. Muskegon , 41 Mich. App. 642 ( 1972 )

41 Mich. App. 642 (1972) 200 N.W.2d 460

HARRY
v.
MUSKEGON.

Docket No. 12641.

Michigan Court of Appeals.

Decided June 29, 1972.

Elmer R. Kuck, for plaintiffs.

Landman, Hathaway, Latimer, Clink & Robb, for defendants.

Before: T.M. BURNS, P.J., and HOLBROOK and BORRADAILE,^[*] JJ.

PER CURIAM.

Plaintiffs appeal from a summary judgment granted to defendants Mead, Russell, and the City of Muskegon by the trial court under GCR 1963, 117.2(3).

On Sunday, February 28, 1965, at approximately 2 a.m. a car towing a travel trailer was stalled in the center lane of Muskegon Avenue just west of Jefferson Street in the City of Muskegon. Plaintiff Billie Harry, after receiving a call for assistance from the driver of the car towing the trailer, drove to the intersection to assist his friends in starting their car. Plaintiff Billie Harry then proceeded to position his automobile in the center lane of Muskegon Avenue facing the stalled car so that he might attach jumper cables between the batteries of the two cars.

At approximately 2:40 a.m. plaintiff was standing between the two vehicles and was in the process of attaching the jumper cables when a car driven by defendant Crabill struck the trailer from the rear, pushing it forward, thereby pinning plaintiff Billie Harry between his own automobile and the stalled automobile. The collision resulted in injuries to plaintiff Billie Harry which necessitated the amputation of his right leg above the knee.

Just prior to this collision, defendant police officers Mead and Russell, during the course of their duties for the City of Muskegon, came upon this stalled vehicle. Defendants Mead and Russell asked if their help was needed and upon receiving a negative answer drove off. Plaintiffs Harry allege in their complaint that the defendants Mead and Russell were negligent in carrying out their duties as police officers by failing to remain at the scene and render aid and assistance and warn other motorists of the situation.

MCLA 242.1; MSA 9.591 provides:

"Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets * * * in reasonable repair and in condition reasonably safe and fit for travel by the * * * city * * * shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction."

Clearly, the above statute makes the municipal authority responsible for any injuries resulting from the irrepair of the streets contained within the corporate limits of the city. In our opinion, however, the statute also creates a duty in the municipality to remove traffic obstructions like the instant one if such obstruction renders the street unsafe or unfit for travel.

The learned trial judge analyzed the above statute and arrived at the conclusion that it imposed no duty upon defendants to remove traffic obstructions. We disagree. The statute does impose upon the city, through its officers, a duty to keep the streets in a reasonably safe and fit condition for travel. Moore v Kenockee Twp, 75 Mich. 332, 340 (1889). In our opinion that statute is equally applicable to traffic obstructions as well as to keeping the road in repair. Therefore, there is a question of fact as to whether the action of the officers, in failing to assist in removing the traffic obstruction, breached their duty of keeping the streets in a reasonably safe and fit condition for travel. The question becomes whether the street was reasonably safe and fit for travel with plaintiff's car and the stalled car in the center lane of Muskegon Avenue and if not, was it due to the neglect of the City of Muskegon through its officers Mead and Russell. Since there is a question of fact, it was error for the trial court to grant a summary judgment under GCR 1963, 117.2(3).

The statute, MCLA 242.1, has been held applicable where the street is more unsafe by the acts of third parties, if the city has knowledge of such defects. Davis v City of Adrian, 147 Mich. 300, 306 (1907). We would note, therefore, that since we are dealing with a situation where the unsafe condition of the street has been caused, if at all, by third persons, the city's knowledge is a prerequisite to recovery under the statute.

Reversed and remanded.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.