Because I am unable to find in this record any evidence tending to establish either actual or constructive notice (See 1 Comp. Laws 1929, § 4228 [Stat. Ann. § 9.596]) to defendant of the existence of a traplike defect in the sidewalk upon which plaintiff relies for recovery, I am of the opinion that the trial judge was correct in directing a verdict for defendant and entering judgment thereon. Also on another ground hereinafter noted the directed verdict and judgment entered should be sustained. It follows that I cannot concur in the result reached by Mr. Justice SHARPE.
It may be conceded that there is testimony in support of plaintiff's claim that on the date of the accident a traplike defect existed in the sidewalk; but there is no testimony that such traplike condition had existed for such a length of time as constituted constructive notice to defendant of a trap. No claim is made that defendant had actual notice prior to the accident.
Justice SHARPE in his opinion has referred to the testimony bearing upon the issue of notice. As I view that testimony it in no way tends to establish constructive notice of a traplike condition in the walk at the place where plaintiff fell. One of the two witnesses to whose testimony my Brother refers was Mrs. Dorothy Taylor. The whole import of her testimony, so far as it relates to notice, was as follows:
"The defect was caused originally by the root of a tree. * * * During the preceding summer * * * there was this slight raise in the sidewalk (indicating). I put some cement in that. I patted the cement in with my hand * * * real good and hard. * * *
"Q. Now, how much cement had you put in there with your hand that preceding summer? Tell the court, as near as you can, how much. *Page 627
"A. Well, there were two places I repaired. One, I should think took about a couple handfulls, and the other, about the same.
"Q. So you used about four handfulls of cement at the time you repaired it, is that correct?
"A. Yes, sir."
Not only does the foregoing testimony wholly fail to disclose a defect in the walk in the nature of a trap, but other portions of the witness' testimony disclose that she could not identify either of the two defects to which her testimony referred as being the defect which caused plaintiff's fall. Upon being shown plaintiff's exhibit 1, which was a photograph of the defect upon which plaintiff relies for recovery, this witness testified:
"I couldn't tell from this photograph, plaintiff's exhibit 1, if the portion toward the left side of the picture is the place where I put the cement."
The other witness referred to by Justice SHARPE was Carolyn Dipiazza, a 16-year-old girl, who lived in the immediate vicinity where plaintiff fell. So far as constructive notice was attempted to be shown by this witness, her testimony was as follows:
"I have noticed the sidewalk there near this driveway. * * * There is a little bump. I never paid much attention to it. * * * I rode my bicycle over it once, I never tried again. I have been familiar with the sidewalk a couple of years. * * * That bump was there for quite a long time but I never paid much attention to it until I rode the bike. * * * I can't tell definitely what happened then. I was on the ground. I was just laid out riding a bike.
"Q. What did happen to this bike that you were riding? Did you go over the place in the sidewalk?
"A. Well, I can't definitely tell that but I went on one side, the bike slid.
"Q. Did you fall? *Page 628
"A. Yes, on the side. * * *
"Q. Carolyn, was there a change in the bump through the months after the spring (of 1945) when you saw it first?
"A. No, I don't know really. I can't, you know. When you look at a bump you say `well, there is a bump.'"
The witness further testified that the bump to which she had referred was not removed until after plaintiff's accident. As to whether this witness' testimony referred to the same imperfection in the walk where plaintiff fell, should be determined in the light of the further testimony given by the witness, which we quote:
"I am shown a photograph, plaintiff's exhibit 5. I do not recognize the scene that that shows in it. I never looked close at the sidewalk. I did not notice the sidewalk when I went by it in the fall of 1945."
Even if it be assumed that a jury might find that the testimony of this witness referred to the defect in the sidewalk where plaintiff fell, still as I read the testimony there is nothing in it tending to show that the defect in the sidewalk at the time witness observed it was a traplike defect such as plaintiff relies upon and must rely upon for recovery in this case. The foregoing presents all of the testimony upon which plaintiff can rely as proof of constructive notice. But that testimony discloses only that there was an imperfection in the condition of the walk. It falls far short of tending to show that there existed prior to the accident anything in the nature of a traplike defect, which was essential to recovery by plaintiff. Under such a record the trial court would have erred had it submitted to the jury as an issue of fact the question of constructive notice. *Page 629
Plaintiff relies much on Cornell v. City of Ypsilanti,212 Mich. 540. But the opinion in the Cornell Case discloses that (unlike the instant case) plaintiff therein offered proof of the existence over a long period of the traplike defect. Justice FELLOWS, writing for the Court, said:
"But the undisputed testimony was that it had existed for several years and the alderman of the ward in which it was located and who was chairman of the committee on streets and walks knew of it during its existence. It was not a latent defect and had existed for so long that the city was chargeable with notice of its condition. * * * It is obvious that if this depression was of the character claimed by defendant, its noticewas of that condition only, but it is equally obvious that if the depression was of the character claimed by plaintiff its notice was of that condition."
The record now before us fails to bring plaintiff's case within the holding of the Cornell Case, wherein competent testimony that the traplike condition of the walk had existed over a long period of time and in consequence thereof an issue of fact was presented for the jury. The record is not such in the instant case.
Another phase of this record which justified the trial court in directing a verdict is this. In support of its motion at the close of plaintiff's proof for a directed verdict defendant assigned, among others, the following reason:
"That the plaintiff is attempting and has endeavored to change her position from what it was under the original claim as filed with the city commission, as evidenced by the written claim filed, and is at variance from the declaration now on file, and as shown by the witness whose testimony was submitted." *Page 630
In cases of this character the statute (1 Comp. Laws 1929, § 4230 [Stat. Ann. § 9.598]) specifically provides that: "The notice will specify the location and nature of said defect." The notice which plaintiff served on defendant city in so far as it pertained to a claimed defect in the sidewalk read:
"I was tripped by an obstruction on the sidewalk * * * which was caused by the raising of a flag on the sidewalk by the roots of a tree nearby."
But plaintiff's declaration and the defect which she sought to prove were of a different character as indicated by the following quoted from her declaration wherein she alleged:
"Yet the said defendant * * * 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."
Under the testimony construed most favorably to plaintiff the variation in the height of the two slabs of the walk where plaintiff fell was less than two inches. Under the notice given to defendant city plaintiff could not have recovered; but she would be entitled to recover, so far as this phase of her case is concerned, if she proved the nature of the defect in the walk as alleged in her declaration. Under the settled law in this jurisdiction there is a controlling difference in the liability of a city between a case where a person is "tripped by an obstruction on the sidewalk" which obstruction is less than two inches in height (Northrup v. City of Pontiac, 159 Mich. 250), as disclosed in the instant case; and a case wherein a plaintiff is injured by reason of a traplike defect in the nature of "a dangerous cavity" *Page 631 resulting from the sidewalk being "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." Thus the substantial and material variation between the notice plaintiff gave to the city and the allegations in her declaration of facts she sought to prove as a basis of recovery quite conclusively appears.
While Justice SHARPE in support of the proposition that "We have been inclined to a liberal construction of statutes requiring notice of claims, et cetera," refers to three Michigan decisions, I fail to find that any of these cases sustain his conclusion relative to the phase of the instant case now under consideration — i.e., a fatal variance between the notice served on the city and the cause of action alleged and sought to be proven.
As noted in my Brother's opinion it is said in Ridgeway v.City of Escanaba, 154 Mich. 68, wherein the plaintiff was denied recovery, this Court has "been inclined to favor a liberal construction of statutes requiring notice of claims" against cities and has not denied relief where there was substantial compliance with the statute. However, that such liberality is not without limitation or so broad that it practically abrogates the statute is plainly indicated by the holding in the RidgewayCase as stated in a headnote.
"A notice to a city of a claim for personal injury, filed pursuant to section 3173, 1 Comp. Laws [1897], which describes the injury as a `dislocated and broken right shoulder blade' is not sufficient upon which to base a recovery on proof of a broken and dislocated collar bone upon the left side."
We are not in the instant case at all disposed to depart from our holding in Pearll v. City of Bay *Page 632 City, 174 Mich. 643, cited by my Brother. Our holding there, as indicated in the headnotes, was only to the effect that in a suit of this character there was substantial compliance with the statute by plaintiff "who filed an affidavit and statement of claim in distinct papers, referring to each other and attached together, (setting forth) the facts as to the nature and extent of plaintiff's injuries appearing in the statement annexed to the affidavit."
The remaining Michigan decision cited by my Brother on this phase of the case is Knapp v. City of Detroit, 295 Mich. 311. But decision in this cited case has no bearing whatever on the issue of a fatal variance between a notice to the city and the cause set up in a plaintiff's declaration. Instead the KnappCase merely holds that the written notice served on the city, though not under oath, was sufficient, notwithstanding the city charter provided that such notice should be "under oath;" since the controlling statute (1 Comp. Laws 1929, § 4230 [Stat. Ann. § 9.598]) does not require a sworn notice.
It seems quite impossible to escape the conclusion that the phase of the instant case now under consideration is definitely controlled by our holding in Harrington v. City of BattleCreek, 288 Mich. 152, and cases cited therein. The striking similarity of the Harrington Case to the instant case appears from the following headnote.
"Variance between notice of claim against city in which defect in sidewalk was stated as being 20 inches long, 2 inches deep, and about 25 inches wide and amended declaration in which it was alleged plaintiff's toe was trapped by a projection over the opening which caused her to fall, was of substance, and defect upon which liability was sought not having been in notice of claim given city, recovery from *Page 633 it is barred, as notice is a condition precedent to recovery."
Another paragraph of the headnotes in the Harrington Case reads:
"Purpose of notice of claim to city for injuries caused by defective sidewalks is not alone to afford opportunity for investigation but as well to confine plaintiff substantially to the character of the defect alleged in the notice and claimed to have caused injury and consequent liability of the city."
In deciding the Harrington Case we did not overlook Cornell v. City of Ypsilanti, supra, upon which plaintiff relies. Justice WIEST in writing for the court in the Harrington Case said:
"Had the notice of claim stated the nature of the defect and the cause of injury, as set forth in the amended declaration there might be liability. Cornell v. City of Ypsilanti,212 Mich. 540."
No reason is pointed out why we should depart from or overrule our holding in the Harrington Case. The trial judge in directing verdict for defendant in the instant case acted in full accord with our holding in the Harrington Case; and for that reason, as well as for the reason hereinbefore noted, the judgment entered in the trial court is affirmed.
It is so ordered, with costs to appellee.
BOYLES, DETHMERS, and BUTZEL, JJ., concurred with NORTH, J. *Page 634