Marek v. City of Alpena

(ON REHEARING.) In our former opinion (258 Mich. 637) we reversed the judgment because the court erred in directing a verdict in favor of the defendant on the ground that there was no evidence of negligence on its part. We based our conclusion on evidence showing that there was a bump or sharp rise at the point where the approach connects with the floor of the bridge. The question on rehearing is whether there was any such evidence.

The record shows that John Nelson, an experienced bridge builder and former county commissioner of roads, testified as follows in response to a question as to how the bridge was built:

"Well, the bridge is built with a bump at both ends. * * *

"Q. Do you know the rise of that bump?

"A. Oh, I should judge three or four feet."

Samuel Tokoly, an engineer, testified that there was a rise of one and a half feet from the level of the old bridge floor to the level of the new bridge floor.

"Q. Can you tell the jury how that rise was attained in the construction of the bridge?

"A. I believe with timbers. * * * There were timbers laid on top of the old concrete floor. I can't tell you just the size of them. The main timbers of the present wooden structure were laid on top of the old bridge floor, which would make the floor of the wooden structure the thickness of that timber higher than the old concrete floor.

"The Court: So that do I understand then that right where the end of the wooden bridge rests on the old cement bridge the wooden bridge is a foot and a half higher than the floor of the old cement bridge?"

Counsel for the defendant contends that witnesses were referring to a grade in the approach and not to a sharp rise or bump where the approach connects with the floor of the bridge. Their testimony does not support his contention. We admit some confusion in the record as to the actual condition of the bridge, but, in deciding the question as to whether the court was right in directing a verdict for the defendant, we must construe the testimony most favorably to the plaintiff. We adhere to our former opinion.

The judgment is reversed, and a new trial granted, with costs to the plaintiff.

CLARK, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.