Toolan v. City of Lansing

Per Curiam.

When this case was before us at a former term, we held that the plaintiff was.not entitled to recover. See Lansing v. Toolan, 37 Mich., 152 . He has since amended his declaration and had a new trial, and the case comes up again. The evidence was not materially different on this trial, and the circuit judge directed a verdict for defendant.

The plaintiff claims to hold the city responsible for the acts of a contractor in cutting a ditch across one of the streets of the city, which he. planked over for sixteen feet only. The plaintiff in a dark night fell into this *316 ditch as he was passing along the street. The contractor cut it for his own convenience in the prosecution of another work. The plaintiff claims that it was dangerous because not covered further, and gave evidence that the contractor thought so and called the attention of the city marshal to it. There is no claim, however, that the city contemplated further action in respect to it at the time of the injury, and the theory of the plaintiff’s action still is that the city is responsible the same as if the work had been ordered by it. This brings the case exactly within Detroit v. Beckman, 34 Mich., 125 , and our former decision in this case. The city has constructed a work the plan of which is not such as to guard sufficiently, as the plaintiff believes, against accidents. We have only to repeat what we said before, that the question thus presented is one for the municipal authorities, and cannot be referred to a jury.

Judgment affirmed with costs.