Hummel v. City of Grand Rapids

This is an appeal in a personal injury case from a judgment for defendant entered on a directed verdict.

Plaintiff, a woman of mature years, and a companion were walking south on Ionia avenue, S.W., Grand Rapids, on the 11th day of February, 1946, at about the hour of 10 to 11 a.m. The day was windy, dark and snow was blowing and drifting in spots. There were some ice spots on the sidewalks. At a point adjacent to 952 Ionia avenue there was a driveway crossing the sidewalk with a curb running from the sidewalk to the street. The defective place in the sidewalk was located about six inches to the south of the south margin of the driveway. While walking on the sidewalk, plaintiff saw the driveway and passed over it. She stubbed her toe on a rise in the sidewalk, fell on her left knee, and broke her left kneecap.

March 26, 1946, plaintiff gave notice to the city of Grand Rapids of her injury in the following language:

"I was tripped by an obstruction on the sidewalk while walking south on the east sidewalk on Ionia avenue, S.W., in the city of Grand Rapids, Michigan, which was caused by the raising of a flag on the sidewalk by the roots of a tree nearby. I fell on the sidewalk and fractured the kneecap on my left leg."

Defendant city declined to recognize and adjust plaintiff's claim and on November 22, 1946, she instituted the present action. Defendant city filed an answer to the declaration in which it denies it disregarded any duty in regard to said sidewalk and asserts that plaintiff's declaration is not in conformity with her original claim. The cause came on for trial and at the conclusion of plaintiff's proofs the city attorney made a motion for a directed verdict on the ground that plaintiff had not established any negligence on the part of defendant city; that plaintiff had not established she was free from contributory negligence; and that plaintiff's written claim as originally filed with the city commission is at variance with her declaration and with one Meyers' testimony.

The trial court granted defendant's motion on the theory that there was no negligence on the part of the city in the maintenance of the sidewalk at the time and place of plaintiff's injury. In an opinion he stated as follows:

"There has been no testimony from witnesses who visited the scene of the accident, who took measurements of it, that is that the edge of the walk was an inch and three quarters higher than the surface of the adjoining walk, no one has testified as to any opening under the edge of the sidewalk, as to the extent of it, as to the size of it, the width of it or the depth of it, upon which a jury could speculate or shall we say consider, to determine whether or not that defect was of such character as to be liable to cause injury to a pedestrian. * * *

"There isn't any question, so far as cases of this nature are concerned, that Michigan is dedicated to the rule that the city is only bound to keep its streets in a reasonable state of repair, and it is only where the defect or depression is such that in and of itself it is specially calculated to result in injury to pedestrians. There isn't anything about the nature of the defect that has been described in this case or that has been revealed by the photographs that have been taken and have been presented, that this depression was of such nature that an ordinary careful and prudent man in observing it would say that it was specially dangerous and calculated to injure pedestrians. So far as the testimony is concerned it indicated that a piece of sidewalk had been raised above the level of the surrounding sidewalk. The testimony is that the maximum extent is an inch and three-quarters.

"Under the circumstances it is the duty of the court * * * to say that so far as the proofs are concerned, plaintiff having rested, she has failed to maintain and sustain the burden of proof and that the court does not find that the nature of the defect which is relied upon was of such a character that the jury should be allowed to speculate as to its dangerous character."

Plaintiff appeals and urges that the negligence of the city of Grand Rapids presented a jury question; that plaintiff was not guilty of contributory negligence as a matter of law; and that there was no material variance between plaintiff's original claim filed with the city of Grand Rapids and her declaration filed in the instant case.

We shall first discuss the question of the negligence of the city in maintaining its sidewalk upon the occasion complained of.

The liability of a city to a person injured by reason of the failure of the city to keep its sidewalks in reasonable repair is found in 1 Comp. Laws 1929, § 4223 (Stat. Ann. § 9.591), which 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, and all bridges, sidewalks, cross walks 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 just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction."

Plaintiff relies upon Cornell v. City of Ypsilanti,212 Mich. 540. In that case plaintiff while walking on a sidewalk caught her foot on a projecting edge of the sidewalk. She testified as follows:

"We were walking along not at a fast pace, we knew we had lots of time for the car and were in no hurry and were just talking along and I know I stepped down and when I went to take this foot forward it was caught and this knee bent and I fell forward on my face, my left foot caught. I couldn't move it, when I went to pick it up to move it forward it was caught, I went to bend this knee and I couldn't and fell forward."

In affirming a judgment for plaintiff, we said:

"We reach the conclusion that while a municipality is not liable, as matter of law, for slight depressions in its sidewalks, such depressions may be of such size, shape and character as to make the question one of fact, and that where the evidence tends to establish that the depression is of such size, shape and character as to form a trap in which the pedestrian's foot may be caught and held a question for the jury under proper instructions is presented. Plaintiff under this rule made a case for the jury."

In the case at bar plaintiff testified as follows:

"I was ahead, I see the driveway but didn't see this here, I stubbed my toe on. When I stubbed my toe, my foot went back under me. My left knee was injured. * * *

"Q. What happened that your foot went back under you?

"A. I stubbed my toe.

"Q. Now, then, was your foot held over, back?

"Mr. Allaben: I object to counsel leading.

"A. No, it went back under me. * * *

"Q. So you really don't know what caused you to fall?

"A. No, I stubbed my toe. * * *

"When the officer asked what happened, I probably told him I stubbed my toe and fell. Mr. Meyers told the police officers that I had stubbed my toe and had a fall.

"Q. And that is what did happen, didn't it?

"A. Yes, sir. * * * I didn't see what I stumbled on. I couldn't tell where it was. * * * I seen the drive, but I didn't see where I stubbed my toe."

However, her companion William Meyers testified that plaintiff stubbed her toe on the "shingle," that she had about two inches of her shoe underneath the lift; that when he picked her up she could not move her foot; and that her shoe was right there underneath the "shingle."

If there was no other testimony than that given by plaintiff, personally, such testimony would preclude recovery on the issue under consideration, but upon a motion by defendant to direct a verdict testimony most favorable to plaintiff, whether given by herself or witnesses in her behalf, must be accepted.

In Bullen v. Wakefield Crushed Stone Co., 235 Mich. 240, we said:

"Some of the witnesses gave testimony of little probative value, not sufficient, standing alone, to make plaintiff's case, but, upon a motion to direct a verdict for defendant, the testimony most favorable to plaintiff, and all of it, must be accepted, and the fact that one witness did not make plaintiff's case in its entirety did not require the rejection of his testimony, where, coupled with other testimony, it had a tendency to establish plaintiff's case. A party is not required to make his case by a single witness, and frequently the strongest cases are made by dovetailing together bits of testimony found here and there in the record, some bits appearing inconsequential, considered alone, but, when considered with other facts, bring conviction to the mind of the average juror."

The testimony of Meyers that plaintiff had about two inches of the toe of her shoe underneath the lift in the sidewalk is some evidence that a trap or condition existed in the sidewalk which presented a jury question on whether such defect was of such a nature that negligence of the city of Grand Rapids could be predicated thereon. The trial court was in error in failing to submit this question to a jury.

Defendant urges that plaintiff was guilty of contributory negligence as a matter of law. Assuming that there was a ledge in the sidewalk, as testified to by witness Meyers, we cannot say that plaintiff was guilty of contributory negligence as a matter of law in failing to see it under the circumstances of this case.

Defendant urges that there is no proof in the case that the alleged defect existed for a period of 30 days or more prior to plaintiff's accident. The facts in this case show that one witness testified that during the summer of 1945 she made some repair to the sidewalk where plaintiff stubbed her toe. Another witness testified that around Easter time in 1945 she rode her bicycle over a bump at the place in question.

The statute relating to notice is found in 1 Comp. Laws 1929, § 4228 (Stat. Ann. § 9.596), and reads as follows:

"If said public highway, street, bridge, sidewalk, crosswalk or culvert is in a condition which is not reasonably safe and fit for travel either by persons, animals or vehicles, because of defects in the original construction, then it shall not be necessary to show that any notice thereof was brought to the attention of such township, village or city, before a recovery can be had. 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 thirty days or longer."

In Wilkinson v. City of Grand Rapids, 228 Mich. 120, we had occasion to construe this act. We there said:

"Under this section of the statute the plaintiff has fully met the requirements of the law as to notice when she has shown that the defect complained of existed for a period of 30 days or longer. From that fact arises a conclusive presumption that the city had notice of the defect and a reasonable time in which to repair it."

Whether or not the alleged defect existed for a period of 30 days or longer presented a question of fact and should have been presented to the jury.

It is next urged that there is a fatal variance between plaintiff's original claim and her declaration filed in the instant case. The notice of injury filed with the city commission stated:

"I was tripped by an obstruction on the sidewalk while walking south on the east sidewalk on Ionia avenue S.W., in the city of Grand Rapids, Michigan, which was caused by the raising of a flag on the sidewalk by the roots of a tree nearby. I fell on the sidewalk and fractured the kneecap of my left leg. * * *

"The defective sidewalk was immediately in front of #952 Ionia avenue S.W., * * * the home of Mrs. Julia Lawson."

A list of the names and addresses of witnesses was added to the notice given.

Section 4230, 1 Comp. Laws 1929 (Stat. Ann. § 9.598), provides in part:

"The notice will specify the location and nature of said defect, the injury sustained, and the names of the witnesses known at the time by claimant."

The declaration filed by plaintiff stated:

"4. Yet the said defendant, not regarding its duty in that behalf, did not, on the date hereinafter mentioned, and long prior thereto, keep the sidewalk heretofore described, in reasonable repair and in condition reasonably safe and fit for travel, but permitted to exist on said sidewalk a dangerous cavity and obstruction, to-wit, said sidewalk was broken and a depression existed thereon leaving the edge sharp, raised and overhanging in such a manner as to cause a hazardous and dangerous condition to pedestrians walking over it in a southerly direction. That defendant, for a long time prior to the occurrence hereinafter set forth, had actual as well as constructive notice of such broken and dangerous condition."

In Ridgeway v. City of Escanaba, 154 Mich. 68, we said:

"We have been inclined to favor a liberal construction of statutes requiring notice of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute, or where the defect had been waived by the council."

See, also, Pearll v. City of Bay City, 174 Mich. 643.

In Griffin v. Town of Ellenburgh, 171 App. Div. 713 (157 N Y Supp. 813), it is said:

"The purpose of the notice is to fairly apprise the officers of the town of the nature and circumstances of the accident, so that they may investigate the same fully and intelligently and with certainty as to the place and conditions of the accident, so far as the facts are concerned, with a view to making either an appropriate settlement of the claim or an effective and intelligent defense of the action, and if the notice serves that purpose the requirement of the statute has been effectuated."

See, also, Knapp v. City of Detroit, 295 Mich. 311.

In the instant case plaintiff gave written notice of her injury within the 60 days required by statute, together with a list of witnesses. At a hearing before a committee of the commission, some of these witnesses gave testimony including the witness Meyers. In our opinion plaintiff was not required to state her claim in the notice with the formality and completeness required in her declaration, nor to produce proofs in greater detail before the commission than it desired. We do not think the variance between plaintiff's original notice and her declaration amounts to a change of theory upon her part. The declaration gives more detail of how the accident occurred, but both the notice and the declaration are based upon the fact that plaintiff "stubbed her toe" by reason of a defect in the sidewalk.

The trial court was in error in directing a verdict for defendant. A jury should have passed upon the questions of whether or not there was a "trap" as claimed by plaintiff and, if so, whether it had existed for a period of 30 days or longer. The jury should also pass upon the contributory negligence of plaintiff in failing to see the defect and the negligence of defendant in permitting such condition to exist. The judgment should be reversed and the cause remanded for trial. Plaintiff should recover costs.

BUSHNELL, C.J., and REID, and CARR, JJ., concurred with SHARPE, J.