Commissioner to build or repair.

Proviso, division of expense.

Penalty for riding or driving on walks.

Unlawful to drive cattle,

Proviso.

(299) § 4577. SEC. 7. If the highway commissioner shall decide that the building or altering of the sidewalk applied for is necessary and advisable he shall proceed to build or rebuild such walk or cause the same to be built or rebuilt and he shall have the general care and superintendence of such sidewalks, and for the purpose of building and repairing the same may use not to exceed one hundred dollars per year from the road repair fund of his township: Provided, That one-half the expense of building, rebuilding or repairing such sidewalks shall be paid by the owner of the property abutting such walk and, provided such abutting property owner shall neglect or refuse to pay his share of the building. rebuilding or repairing of such walk, the same shall be assessed against the property to be collected with the next general tax against such property.

(300) § 4578. SEC. 8. Whoever shall ride or drive upon any sidewalk laid out according to the provisions of this act, except for the purpose of crossing the same, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five dollars and the costs of prosecution, or by imprisonment in the county jail of the county not exceeding ten days, or by both such fine and imprisonment, in the discretion of the court.

(301) § 4579. SEC. 9. It shall be unlawful for any peretc., on walks. son, wilfully, to drive any cattle, horses, sheep, swine or other animals, or to ride or drive any vehicle other than bicycles or tricycles, upon and along the sidepaths and sidewalks, whether constructed by private persons or public authority for the use of pedestrians and bicyclists, in the public highways and roads of this state, outside of incorporated cities and villages: Provided, That such paths and sidewalks to be protected by the provisions of this act shall be on only one side of any roadway and in some manner separated and distinguished from the main traveled part of the highway: Provided further, That the location of such path or paths shall first have been determined by the commissioner of highways or the county road commissioner, such determination to be filed in the office of the township clerk or the clerk of the county, as the case may be: Provided further, That persons feeling themselves aggrieved at the decision of said highway commissioner shall have the right to appeal from his decision to the township board in the same manner as now provided by law in laying out and constructing highways.

Further proviso.

Further proviso.

Penalty for injury, etc., to walks.

For an act prohibiting the use of bicycles, motorcycles or other motor vehicles, on sidewalks in unincorporated villages, or plat or plats not in any incorporated village or city, see secs. 560, 565.

(302) § 4580. SEC. 10. It shall be unlawful for any per son, wilfully to injure or destroy, or render impassable or dangerous for pedestrians or persons riding bicycles, any sidepath or walk as described in section nine of this chapter.

placing glass, etc. on

Penalty for

walks.

(303) § 4581. SEC. 11. It shall be unlawful for any per son wilfully to place upon the surface of any such public street or highway in this state, or upon any sidewalk or path appurtenant thereto, any glass, metal, stones, earthenware or other substance of a nature likely to cause injury to travelers, pedestrians, carriages, bicycles or other vehicles used on said road, or which are of a nature likely to wound, disable or injure any horse or other animal, or to cut, injure or puncture any pneumatic tire: Provided, Nothing contained in this Proviso. section shall be so construed as to prohibit the public authorities from using any usual or proper means in the improvement of roads and highways.

(304) § 4582. SEC. 12. Whenever any such side-path or walk is constructed less than twelve feet from the center of the highway, it shall be considered as part of such highway. No side-path or walk within the meaning of this act shall exceed five feet in width. Nothing in this act shall be construed to prevent any person from driving across said paths or walks for the purpose of entering private property.

(305) § 4583. SEC. 13. Any person found guilty of a violation of this act shall be deemed guilty of a misdemeanor and punished by a fine of not less than one dollar, nor more than ten dollars for each offense, together with costs of prosecution, or imprisonment in the county jail not exceeding ten days, or by both such fine and imprisonment in the discretion of the court; and shall further be liable in an action to any person who shall suffer injury to his person or property by reason of such violation of the provisions of this act.

General ulations.

Misdemeanors.

reg

CHAPTER XXII.

RECOVERY OF DAMAGES.

personal in

(306) § 4584. SECTION 1. Any person or persons sus- Damages for taining bodily injury upon any of the public highways or juries. streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks 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.

STATUTORY ONLY: The liability of cities for injuries suffered in their streets is statutory-McArthur v. Saginaw, 58/360; Roberts v. Detroit, 102/64, (citing Detroit v. Blackeby, 21/84; McCutcheon v. Homer, 43 / 483); McKellar v. Detroit, 57 / 159; McKeller v. Moulter Twp.. 78/491; Clark v. North Muskegon, 88 / 309. And such liability depends upon a true interpretation of the statute creating it.-Dundas v. Lansing, 75 / 504.

LIABILITY UNDER ACT: For decisions illustrative of municipal liability, see Dundas v. Lansing, 75/499; Malloy v. Walker Twp., 77/460; Tice v. Bay City, 78/209; 84/461; Sebert v. Alpena, 78/165; McKeller v. Monitor Twp., 78/485; Blank v. Livonia Twp., 79/1; Campbell v. Kalamazoo, 80/655; O'Neil v. West Branch, 81/547; Moon v. Ionia, 81/635; Clark v. North Muskegon, 88/308; Racho v. Detroit, 90/92; Face v. Ionia, 90/104; Frary v. Allen Twp., 91/666; Fuller v. Jackson, 92/197; Detweiler v. Lansing. 95/484; Bigelow v. Kalamazoo, 97/121; LaDuke v. Exeter Twp., 97 / 450; Dittrich v. Detroit, 98 / 245; Reed v. Detroit, 99/204; Hembling v. Grand Rapids, 99/293; Lincoln v. Detroit, 101/245; Roberts v. Detroit, 102 / 64: Williams v. Petoskey, 108/260; Will v. Mendon, 108/251; Shietart v. Detroit, 108/309; Walker v. Ann Arbor, 111/1; Baker v. Grand Rapids, 111 / 447: Holtham v. Detroit, 136/17; McEvoy v. Sault Ste Marie, 136 / 172; Beaudin v. Bay City, 136/333; McCarthy v. Munising Village, 136/622; Beattie v. City of Detroit, 137/319; Oesterreich v. Detroit, 137/415; Hendershott v. Grand Rapids, 142 / 140.

MUNICIPAL LIABILITY: There can be no question of the power of the legislature to make the municipalities liable for such injuries, independent of any question of where the duty to keep in repair is located, or upon whom it is imposed.-Burnham v. Byron Twp., 46/558. Municipal liability is the same, so far as concerns innocent persons, whether the condition of the way is due to wear and decay or to the misconduct of individuals in tearing it up.-Dotton . Albion, 50/132. The liability of a city is expressly declared by the statute and it is immaterial whether, under the provisions of its charter, it would be held so liable or not.-Campbell v. Kalamazoo, 80 / 662. The liability extends to townships, cities and villages alike.-McKellar v. Detroit, 57/159; McArthur v. Saginaw, 58 / 361. To render a municipality liable there must be not only defects, but also fault in allowing them to exist.--Fulton I. & E. Works Kimball Twp., 52 / 148. A graded approach to a bridge is a part thereof, and must be kept in a reasonably safe condition.-Shaw v. Saline Twp., 113 / 342. Municipalities are not liable for accidents caused by natural accumulation of ice and snow upon its walks.-Wesley v. Detroit, 117/658; Newman v. Ann Arbor, 134/29; Corey v. Ann Arbor, 134 / 376; Id., 124/134. Municipal liability, see also Menard v. Bay City, 114/450; Griswold v. Ludington City, 116/401; Seeger v. Village of Hart, 160 / 134. A boy who is in fact traveling over a street in a proper manner, though such traveling includes play, is within the protection of the statute.-Beaudin v. Bay City, 136 / 333. A village is not liable for personal injuries caused by permitting horse racing on a street which was in proper condition and safe for travel.-McCarthy v. Munising Village, 136 / 622. Liability of city for injuries caused by negligence of contractor. Thompson v. Bay City, 137 / 94; Wright v. Muskegon City, 140 / 215. A city is not liable for injuries to a person, received by a fall caused by his cane going through a crack between two planks with decayed edges, where the walk was in a reasonably safe condition for persons not using canes.-Harden v. Jackson City, 137/271. A city is not liable for injuries resulting from the maintenance of a billboard by a property owner on a space between the street line and the building.-Temby v. Ishpeming, 140/146; Temby v. Ishpeming. 146/20. A traveler injured on a street properly paved and in good repair, by reason of his horse being frightened by city fireman flushing city's fire hydrants, cannot recover therefor against the city, on the theory that it did not keep the street in a condition reasonably safe for public travel.-Brink v. Grand Rapids, 144 / 472. A city cannot relieve itself by contract of its statutory liability to keep the streets reasonably safe for public travel.-Barker v. Kalamazoo City. 146/257. A municipal corporation is not liable for injuries sustained by a person using the sidewalk, caused by the falling of a dead limb from a tree in the highway.-Miller v. City of Detroit, 156/630. The legislature has power, by a local act, to limit the liability of a municipality for injuries sustained from defective streets or sidewalks to cases where a notice in writing of the defect shall have been served upon the Board of Public Works.-Forysth v. City of Saginaw, 158/201. Under charter provisions placing the construction of sewers and drains under the superintendence of the street commissioner, the city is liable for the negligence of a plumber, who, in constructing, with the permission of the street commissioner, a sewer connection to a residence, left the trench in the street unlighted, so that plaintiff drove into the excavation and was injured.-Bonneville v. City of Alpena, 158 / 279. A grating which projects two inches or less above a sidewalk is not such a defect as to violate the duty of a municipality to keep its streets and walks in a condition of reasonable safety. -Northrup v. City of Pontiac, 159/250. Under the statute requiring municipalities to keep the streets reasonably safe and fit for public travel, the city cannot relieve itself of liability by turning a street over to a paving contractor. -Hughes v. City of Detroit, 161 / 283. The passage of the act providing for the county road system was not intended to make counties adopting it liable for defects in sidewalks in an unincorporated village. Ferguson v. Muskegon Co.. 181 / 335. The liability of municipalities for injuries upon highways is purely statutory and cannot be enlarged by construction.-Brown v. Twp. of Byron. 189/584.

CONTRIBUTORY NEGLIGENCE: Liability of municipality when the plaintiff is charged with contributory negligence.-Stebbins v. Keene, 55/557; McKeller v. Monitor Twp., 78/490. When careless and negligent driving contributes to the injury, there can be no recovery.-Abernethy v. Van Buren Twp., 52/383; McCool v. Grand Rapids, 58/41; Harris v. Clinton Twp., 64 / 453. While contributory negligence is not to be presumed from the knowl edge of the existence of the defect, such knowledge enjoins upon a party a degree of care commensurate therewith.--Dittrich v. Detroit, 98 / 248. When a person walking along a country road in the dark steps into a hole for which he was on the lookout, his knowledge of the defect does not necessarily establish his negligence, but is only a fact for the jury to consider.-Lowell v. Watertown Twp.,

58/568; Dundas v. Lansing, 75/508; Sias v. Reed City, 103 / 314-15 and cases cited. Intoxication of plaintiff.-Lincoln v. Detroit, 101 / 245. On the subject of contributory negligence, consult also Smith v. Jackson, 106/136; Strudgeon v. Sand Beach, 107/496; Bouga v. Weare Twp., 109/520; Church v. Howard City, 111/298; Baker v. Grand Rapids, 111/447; Welsh v. Lansing. 111/589; Whoram v. Argentine Twp., 112/20; Perkins v. Delaware Twp., 113/377; Schwingschlegl v. Monroe, 113/683; Minkley v. Springwells Twp., 113/347; Hunter v. Durand Village, 137/53; Oesterreich V. Detroit, 137/415; Barnes v. City of West Bay City, 138/93; Vander Velde v. Leroy Village, 140/359; Barker v. Kalamazoo City, 146/257; Lewis v. Marshall. 146/389; Scharman v. Bay Co. Bridge Commission, 158/77. It is not negligence, as a matter of law, for a person who knows of the defective condition in a sidewalk to use the walk exercising care commensurate with the danger.— O'Connor v. City of Detroit, 160/193. See Wolverton v. Village of Saranac, 171/419. Question for jury.-Highland v. Township of Garfield, 168/538. It is fundamental, in all actions for negligence, that the plaintiff has the burden of showing that he was free from contributory negligence.-Rohlfs v. Township of Fairgrove, 174/555. To adopt the more dangerous of two known ways of doing a particular thing, because it is more convenient than the safer way, is contributory negligence.--Id. Canfield v. Township of Gun Plains, 175 / 379. To render a negligent act the proximate cause of the alleged fall, it was not essential that the persons who constructed the ditch might have foreseen the particular consequence or injury, or manner in which it took place, if by an exercise of reasonable caution it might have been anticipated that some injury might occur.-Morrison v. City of Ironwood, 189 / 117. In an action for negligence in failing to properly guard a drawbridge so that an automobile in which decedent was riding ran off the open draw, the question whether the driver was or was not guilty of contributory negligence for driving through the open gate at the entrance to the bridge, which was out of order at the time so that it did not close when the draw opened, was properly left to the jury as a question of fact under the evidence.-Beach v. City of St. Joseph, 192 / 296.

NOTICE: Notice, of defects, to contractor is not notice to township.Moore v. Hazelton Twp., 118 / 425. Notice should be given townships.--White v. Riley Twp., 121 / 413; Pearl v. Benton Twp., 123 / 411. Notice of dangerous condition of bridges. Aben V. Ecorse Twp., 113/9: Snyder V. Albion City, 113/275; Randall V. Southfield Twp., 116 / 501; Pearl V. Benton Township, 131 / 275. A township is bound to make a reasonable inspection of highway bridges maintained by it.-Bettys v. Denver Twp., 115/228. Knowledge of a defective sidewalk by city clerk or patrolmen is not a notice to city.-Corey v. Ann Arbor, 134/376. Actual notice of an obstruction in a street to the city superintendent of streets is notice to the city-McEvoy v. Sault Ste. Marie, 136 / 173; Weitzel v. Fowler Village, 143/700. Duty of officials to inspect.-Hunter v. Ithaca Village, 141/539. See Hendershott v. Grand Rapids, 142/140; Ness v. Escanaba, 142/ 404. Evidence that officers of a township, including the highway commissioner, had been notified of the defective condition of the bridge, and that the condition existed several months, tends to show actual and constructive notice.-Hunter v. Dwight Twp., 157/634. The notice to a municipality corporation is not a pleading, and need not charge negligence.-Knudsen v. City of Muskegon, 158/185. See Forsyth v. City of Saginaw, 158/201; Hughes v. City of Detroit, 161/283. Evidence of accidents similar to the one in litigation and occurring prior thereto, is admissible to prove both notice of the defect and negligence, but subsequent occurrences are not competent.-Branch v. Klatt, 173/35; Lamb v. Village of Clam Lake, 175 / 77.

HIGHWAYS: Reasonable care in the construction of highways for ordinary vehicles, such as wagons and carriages, is the duty resting upon townships under the existing statute, and in the absence of further legislation, the courts will not extend the duty so as to require highways to be kept safe for bicycles and similar vehicles.-Leslie v. Grand Rapids, 120 / 28.

OPEN TO PUBLIC USE: It is not sufficient under this statute that it be a public highway or street, but it must be opened to the public for use.--Clark v. North Muskegon, 88 / 309.

BODILY INJURY: This section limits the liability to cases of bodily injury. -Roberts v. Detroit, 102 / 66.

ALLEY: A public alley is not a public highway or street, within the meaning of this act, and there is no law, either statutory or common, in this state making it the duty of a city to keep its alleys in good or reasonable repair, or reasonably fit for public travel.--Face v. Ionia, 90/104.

STATE ROADS: State roads having been placed in 1836 under the control, care and supervision of the highway commissioners in the several townships, such officers are in duty bound to keep them in good repair and safe repair and, failing in this, the township is liable.-Bridge Co. v. Jasper Twp., 68/449; Sharp v. Evergreen Twp., 67/447; Delta Lumber Co. v. Wayne Co. Auditors, 71/576.

SUNDAY TRAVEL: A person has the right to travel on a public highway on Sunday for any lawful purpose and can recover damages resulting from a defective highway the same as if received on a week day.-Sharp v. Evergreen Twp., 67/443.

"CHARTER PROVISIONS: The provision of a charter, exempting a city from liability for damages occasioned by obstructions on its sidewalks, is not invalid as class legislation.-Maclain v. Marquette City, 148/481. Sufficient compliance with.-Pearll v. City of Bay City, 174 / 643.

Damages for injuries to animals or other property.

Liability.

Municipalities, etc., to keep walks,

in repair.

(307) § 4585. SEC. 2. If any horse or other animal, or any cart, carriage or vehicle or other property, shall receive any injury or damage by reason of neglect by any township, village, city or corporation to keep in repair any public highway, street, bridge, sidewalk, crosswalk or culvert, the township, village, city or corporation whose duty it is to keep such public highway, street, bridge, sidewalk, crosswalk or culvert in repair, shall be liable to and shall pay the owner thereof just damages, which may be recovered in an action of trespass on the case before any court of competent jurisdiction.

REASONABLE TIME, ETC.: The liability does not apply until after the municipality has had reasonable time and opportunity to put the way in proper condition. McKellar v. Detroit, 57 / 159; Woodbury v. Owosso, 64 / 239. As to reasonable time, see Smith v. Sherwood Twp., 62/159; Dittrich v. Detroit, 98/245; Hunter v. Durand Vil., 137 / 53.

NOTICE, ETC. To render a municipality liable, its officers must have had knowledge or notice of the defects.--Fulton I. & E. Works v. Kimball Twp., 52/148; Woodbury v. Owosso, 64/239; Burleson v. Reading, 110/512. Former acts would seem to have made a municipality liable without regard to the question of notice, but the act has always been construed by this court, that it was liable only in case of negligence, and it could not be held negligent, until after notice, actual or constructive; and later legislation was evidently framed to meet this view.-Moore v. Kenockee Twp., 75 / 341. Actual notice is not necessary. Dotton v. Albion, 50/132; Campbell v. Kalamazoo, 80 / 656. But in the absence of actual notice municipalities are liable only for such defects in sidewalks as are apparent, or are suggested by appearances, or which are disclosed by a test in the nature of the ordinary use of such walks.-Hembling v. Grand Rapids, 99 / 294-5. The individual knowledge of officers or agents of a municipal corporation, who in such capacity have powers or duties conferred upon them with reference to a given matter is the knowledge of the corporation, and notice to them is notice to the corporation.--Dundas v. Lansing, 75/499. The word "notice" is not synonymous with "knowledge." Whatever fairly puts a party upon inquiry is sufficient notice, where the means of knowledge are at hand, and, if a party omits to inquire, he is then chargeable with all he might have ascertained.-Moore v. Kenockee Twp., 75 / 341. Want of knowledge may sometimes imply a want of due care; as where township officers, whose duty it is to keep bridges in a safe condition, do not know of defects which an examination would readily disclose.-Medina Twp. v. Perkins, 48/71-2; Stebbins v. Keene Twp., 55 / 555; Woodbury v. Owosso, 64/239. See also Moon v. Ionia, 81/645. Notice may be presumed from a state of facts with which ignorance is incompatible unless failure to exercise reasonable care is assumed.-Dotton v. Albion, 50/132. See also, on the question of notice, Tice v. Bay City, 84 / 461; Dittrich v. Detroit, 98/245; Smith v. Sherwood Twp., 62 / 165. The knowledge or notice which the statute requires is that of the particular defect complained of, and not knowledge or notice of other defects.-Dundas v. Lansing, 75 / 507. As to notice, consult, also, Strudgeon v. Sand Beach, 107/496; Will v. Mendon, 108/251; Moore v. Kalamazoo, 109 / 176; Mulliken v. Corunna, 110/212; Aben v. Ecorse Twp., 113/9; Haynes v. Hillsdale, 113 / 44; Snyder v. Albion, 113 / 275; Randall v. Southfield Twp., 116/501; Smith v. Walker Twp., 117/14; Rodda v. Detroit, 117/412; Moore v. Hazelton Twp., 118/425; Pearl v. Benton Twp., 123/411; Id., 131 / 275; Thomas v. Flint City, 123/10; Corey v. Ann Arbor, 134 / 376. Proof of notice.-Cavanagh v. Riverside Twp., 136 / 660. See Ness v. Escanaba, 142/404. Notice of claim.Williams v. Lansing City, 152 / 169. One who claims to have notified the street commissioner may state the conversation, but cannot offer his opinion that the commissioner understood what walk was intended.-Wolverton v. Village of Saranac, 171 / 419.

(308) § 4586. SEC. 3. It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonbridges, etc., able repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel, and when the means now provided by law are not sufficient, or when the electors shall not have provided sufficient funds by vote at the annual meeting to enable any township, village or city to keep its public highways, streets, bridges, sidewalks, crosswalks and culverts in reason