(dissenting). This action was instituted in the circuit court of Kalamazoo county for personal injury received by the plaintiff while passing over an alleged defective cross-walk. A trial was had, and verdict rendered in favor of the defendant, during the life-time of Mrs. Stuart. After suing out a writ of error in this Court the action was revived in the name of the administrator. It was suggested upon the argument that the cause of action had abated by the death of Mrs. Stuart; but this suggestion is answered by a reference to the statute (section 7393, How. Stat.), which provides that—
“ In all personal actions, the cause of which does bylaw survive, if there is only one plaintiff, or one defendant, and the sole plaintiff or defendant shall die after the commencement of the action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and by or against the executor or administrator of the deceased party, in the manner provided in this chapter."
The succeeding section provides for the suggestion of the death upon the record, and that the executor or administrator may thereupon take upon himself the prosecution or defense of the suit, as the case may be. At the time of the death of Mrs. Stuart this cause of action was being prosecuted in this Court, and, if the cause of action sur*125vived. then, under the provision of section 7394, the administrator had the right to prosecute the writ of error. By the amendment to section 7397, adopted in 1885, that section now provides as follows:
“In addition to the actions which survive by the common law, the following shall also survive, that is to say: Actions of replevin and trover, actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injuries to the person, and actions for damages done to real or personal estate.”
See, also, Hurst v. Detroit City Railway, 84 Mich. 543. The case was submitted to the jury under instructions, and numerous errors are assigned. It is contended, however, by -the defense, that the proofs on the part of the plaintiff made no case for the jury which tended to show any negligence on the part of the city. And this we understand to be contended for on two grounds: First, that the nature of the defect itself was such that, as matter of law, the court should say the walk was in a reasonably safe condition for public travel; and, second, that, as the walk was constructed in pursuance of a plan adopted by the city authorities, this was a legislative duty, and therefore that no liability could arise out of that neglect.
Plaintiff introduced testimony tending to show that the defect in question consisted of a hole or opening between the end of the walk and the outer rail of the street railway. The walk in question consisted of two planks, about one foot in width and six inches in thickness. The evidence tended to show that, from a point fourteen to sixteen inches from the end of the plank, the same was beveled off sharply to the end nearest the rail; that the plank was laid above the level of the rail; that the nearest point in the plank to the rail was from' two to four inches, leaving a hole; and that the plaintiff’s intestate, in passing over the place, stepped upon this beveled portion of the plank, *126her foot slipped backward into the hole, and from this the injury resulted.
The learned circuit judge was of the opinion that it was a question for the jury as to whether this condition of the walk was a reasonably safe and fit one, and I think that in this view of the law he was correct. See Retan v. Railway Co., 94 Mich. 146; Hill v. City of Fond du Lac, 50 Wis. 242 (14 N. W. Rep. 25); Glantz v. City of South Bend, 106 Ind. 309 (6 N. E. Rep. 632); Goodfellow v. City of New York, 100 N. Y. 15 (2 N. E. Rep. 462); Dowd v. Chicopee, 116 Mass. 93; Elliott, Roads & S. p. 447.
The contention that the city may excuse itself from the performance of a positive duty imposed by the statute, on the ground that the plan of construction of a street or walk is within the legislative discretion of the authorities, is answered by the repeated decisions of this Court. The statute imposing the duty is not uncertain or ambiguous. Section 1446c, 3 How. Stat., provides:
“It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, cross-walks, and culverts that are within their jurisdiction and under their care and control, and which are open to the public, travel.”
Section 1446c provides that—
“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, * * * 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,” etc.
*127In Malloy v. Township of Walker, 77 Mich, at page 462, it is said:
“ This statute cannot be given a construction that would relieve a township or other municipality, upon which a burden is cast to keep its highways in repair and reasonably safe - for travel, from liability by saying that it had adopted a method of construction, and had built according to the plan. A municipality cannot construct a dangerous and unsafe road, — one not safe and convenient for public travel, — and shield itself behind its legislative power to adopt a plan and method of building, and constructing in accordance therewith.”
See, also, Sebert v. City of Alpena, 78 Mich. 165, and Barron v. City of Detroit, 94 Id. 601.
I think there was a case for the jury, but, as my brethren are of the contrary opinion, it is unnecessary to discuss the various assignments of error.