I concur in the foregoing opinion reversing the judgment as to the city of Hamtramck. The trial court incorrectly relied onMerrifield v. Village of Paw Paw, 274 Mich. 550, which was decided upon a provision of the village law requiring submission of a verified claim before allowance. In the case before us, a city rather than a village is involved. But we need not at this time determine whether the enactment of I Comp. Laws 1929, § 4230 (Stat. Ann. § 9.598), has obviated the requirement of making a verified claim against a village, in addition to giving the required notice (see Barkley v. Villageof Highland Park, 199 Mich. 549), when damages from defective condition of a *Page 321 highway is the subject of the claim. This problem is not before us.
However, I think the trial court was right in directing a verdict in favor of the city of Detroit. I agree that the carrier must exert proper efforts to stop at places where the passengers may get on and off with safety. Spangler v. SaginawValley Traction Co., 152 Mich. 405. In that case, but a few hours before the night of the accident, defendant, through its own contractor, had removed the paving blocks near the tracks and left an open excavation into which plaintiff fell. The traction company was responsible for, and chargeable with knowledge of, the condition of the street. But I do not think the Spangler Case warrants submission to the jury of the question of the carrier's negligence in the case before us now. We have said that even where the condition of the stopping place is under the control of the carrier, it is nevertheless not an insurer of the safety of passengers on the premises, and that the law is not as exacting in the care required in this respect as it is in the conveying of passengers. Oppenheim v.Pitcairn, 293 Mich. 475. See, also, Shepard v. Denver TramwayCorp. (C.C.A.), 62 Fed. (2d) 339. I think fairness and practicality require a further limitation when the stopping place is under the control of a municipality which alone has the duty of maintenance of the surface of the street. In my opinion we ask too much if we require the motorman to be ever watchful of surface defects in a street over which the carrier has no control. We impose a duty that is practicably unworkable if the motorman must be constantly on the lookout for and give warning of minor defects in the street which might perchance catch a lady's heel or misguide a step. An operator who would actually try to abide by such an all-seeing duty could not within human limits give *Page 322 enough of his attention to the far more important traffic hazards which are his primary duty, and yet at the same time render efficient, rapid, public transportation. It seems to me that the responsibility for any injuries due to ordinary minor street defects should be on the municipality, rather than on the carrier. I think that if the stop is on a paved public street generally supposed to be reasonably safe, the practical duty of the carrier has been discharged. Perret v. George,286 Pa. 221 (133 A. 228); Reid v. Railway Co., 171 Minn. 31 (213 N.W. 43); Shepard v. Denver Tramway Corp., supra; Lee v. Railway Co., 182 Mass. 454 (65 N.E. 822); Lenoue v. RailwayCo., 257 Mass. 285 (153 N.E. 533).
In Perret v. George, supra, Mr. Justice Kephart wrote:
"The hole into which appellant stepped was in the public highway, a thoroughfare over which defendant had no control, was not in any way responsible for, and had no authority to repair, if needed. However broadly and strictly we may have held street railways to care in receiving and discharging passengers, where the company owns or controls the right-of-way with the approaches thereto, the rule is different where such right-of-way and approaches are not so owned. In the latter case, there is a permissive use of the street in common with others, without any control of it. The public officers were in authority, and the municipality is responsible for the street's condition if an injury results therefrom. * * *
"Streetcar companies are not required to observe the condition of streets over which its cars travel so as to stop their cars with exactness at places where passengers may avoid ordinary defects in the highway while alighting. To require otherwise would be to exact of such carriers a degree of care not consistent with efficient public service and would impose *Page 323 an obligation impossible of performance, considering the condition of some of the highways of today. Streetcar companies, of course, cannot stop their cars for persons to alight at places manifestly dangerous."
In Reid v. Railway Co., supra, it is said:
"The general rule of high degree of care is applicable at all times until the relation (of carrier and passenger) is terminated. It has its limitations. This rule is directed at the company's maintenance and operation, but we believe should not apply to the selection of a place to alight in the streets over which it has no control. It is the duty of the municipality to keep the streets in repair. It, if anyone, should be responsible for injuries resulting from street defects. It of course may not be the only one responsible for accidents connected therewith. The defective condition of the surface of the paved street which brought about plaintiff's injuries was not under the control of defendant. It cannot efficiently operate its system and exercise the highest degree of care in minutely watching for trivial surface defects such as are incident to traffic and the elements. It would be impracticable to require defendant to exercise the high degree of care in protecting a passenger against everything on the street upon which he might step and wrench an ankle. * * * He (the motorman) has important and exacting duties to guard against well-recognized street risks incident to vehicles and pedestrians upon the street which, with the constant necessity of having control of the car, command his attention. It is not reasonable to impose the duty of a high degree of care as to the condition of the street which is presumably suitable for the intended use. Such dangers are not usually incident to the operation of a street railway business. They are not naturally to be apprehended. Nor is the passenger helpless in his own behalf. To exact such degree of care would be unworkable. *Page 324 The law does not impose rules incompatible with the ordinary operation of the business to which they relate."
I do not approve a rule which terminates the carrier-passenger relation at the instant the passenger's feet touch the street without mishap (Creamer v. Railway Co.,156 Mass. 320 [31 N.E. 391, 16 L.R.A. 490, 32 Am. St. Rep. 456], and other cases cited in the Spangler Case), if, as Justice NORTH writes, "a few steps will plunge him into disaster." But I think "disaster" should have a narrower meaning as to the carrier when the danger is a surface defect within the safety zone which the municipality and not the carrier is obligated to repair.
The judgment should be affirmed, with costs as to the city of Detroit.
BUSHNELL, C.J., and BOYLES, J., concurred with BUTZEL, J.