Sable v. City of Detroit ( 1965 )

1 Mich. App. 87 (1965) 134 N.W.2d 375

SABLE
v.
CITY OF DETROIT.

Docket No. 271.

Michigan Court of Appeals.

Decided April 19, 1965.

Sugar & Schwartz (Leonard Schwartz, of counsel), for plaintiff.

Robert Reese, Corporation Counsel, Alfred Sawaya and Andrew F. Valenti, Assistant Corporation Counsel, for defendant.

McGREGOR, J.

This action was brought against the city of Detroit, under the statutory provisions of CLS 1961, § 242.1 and CL 1948, § 242.2 et seq. (Stat Ann 1958 Rev § 9.591 et seq.) to recover damages for personal injuries suffered by Louis Sable during the dark evening of December 18, 1959, resulting from a fall caused by defective conditions in the middle of a paved Detroit residential street where plaintiff Sable had lived for some years. The defect was a chuckhole 6-1/2 to 8-1/2 inches wide, 37 inches long, and approximately 4 to 6 inches deep.

Plaintiff fell while crossing the street diagonally to his home, after parking his automobile. Mr. Sable testified that he had never seen the chuckhole at any time, but his wife and a neighbor testified that this chuckhole had been in the middle of the street for some six months before the plaintiff fell. The city had no record of this defective condition in its street.

The trial court excluded from presentation to the jury testimony preserved in a special record, which was offered by the city of Detroit to show the procedures followed in routine maintenance of its streets, the number and size of its streets and street repair crews, and in general, the problems of maintenance and construction in the streets while attempting to keep the same in a condition reasonably safe and fit for public travel. After the court entered a judgment on a jury verdict for the plaintiff in the amount of $5,000, the defendant city moved for judgment non obstante veredicto or, in the alternative, for a new trial. The defendant brings this appeal from denial of said motion.

The plaintiff argues that such proffered evidence is immaterial and irrelevant to his statutory cause of action because he has proven the existence of the claimed defect for a period of more than 30 days and no evidence to the contrary was offered on behalf of the city. The defendant, on the other hand, claims that the excluded evidence is relevant to show lack of neglect on its part in maintaining and repairing the city streets.

The salient statutory provisions are as follows:

"Sec. 1. 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, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk, or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation 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." CLS 1961, § 242.1 (Stat Ann 1958 Rev § 9.591).

"Sec. 3. It is hereby made the duty of townships, villages, cities, or corporations, to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel." CL 1948, § 242.3 (Stat Ann 1958 Rev § 9.593).

"Sec. 6. * * * If the defect is caused by said highway, street, bridge, sidewalk, crosswalk or culvert becoming out of repair, it shall be conclusively presumed that the township, village or city had notice thereof and a reasonable time in which to repair the same, provided said defect has existed for a period of 30 days or longer." (CL 1948, § 242.6 (Stat Ann 1958 Rev § 9.596).

Although this cause of action is purely statutory, it is trespass on the case, brought to recover damages for injury caused by one's breach of the duty of due care owed to another. Proximate cause is an element of such an action. Buhler v. City of Detroit (1936), 274 Mich. 139. Contributory negligence is a defense. Johnson v. City of Pontiac (1936), 276 Mich. 103.

Section 3 of the statute imposes a duty on municipalities to keep all streets within their jurisdiction reasonably safe for public travel. Styles v. Village of Decatur (1902), 131 Mich. 443. Section 6 makes 30 days a reasonable time in which to repair defective conditions. Failure to perform a legal duty within a reasonable time is neglect. A municipality is negligent if it allows its street, for a period of 30 days, to be in a condition not reasonably safe and fit for travel.

The evidence proffered by the defendant city was properly excluded. It was not relevant to the factual issues remaining for presentation to the jury. City of Grand Rapids v. Wyman (1881), 46 Mich. 516.

Judgment of the trial court is affirmed, with costs to the appellee.

LESINSKI, C.J., and WATTS, J., concurred.