Corey v. City of Ann Arbor

Grant, J.

(after stating the facts). It is conceded that the sidewalk itself was properly constructed, and was in a safe condition for public travel. It was only made unsafe by the ice caused by the water flowing from a private hydrant. Counsel for defendant contend that the statute does not cover this case. Counsel for the plaintiff contend that, since the icy condition was not caused by the elements, the city is liable for the condition. It is unnecessary to determine this question, since there is another fatal objection tó the plaintiff’s right to recover.

It is conceded that the defendant city had no actual notice. Under plaintiff’s own evidence, the ice had been there but three days before the accident. It is not shown that any officer of the city, charged with the duty to see that the sidewalks were kept in safe condition for public *136 travel, had been along this street during that time, or that its condition was a matter of public talk. Nothing had occurred to call the attention of an officer there any more than to any other part of the city. The city officials had the right to assume that no citizen would be guilty of so careless an act as to leave his hydrant open, and let the water flow over the sidewalk. Neither the plaintiff herself, nor any member of her household, though they lived within a few feet, appears to have known anything about its condition. If neither she nor they knew anything about it, why should the officers of the city be presumed to have known it from the fact of its existence for three days ? There had been a snow the night before, and covered it up. The city might lawfully assume that this sidewalk would remain in good condition, and that no private citizen would do any act to render it unsafe. The city was under no legal obligation to eihploy men to patrol the streets to see that such things were not done, or to remedy them when done. The record utterly fails to show a condition of affairs so notorious that a jury might infer notice to the corporation. There are many miles of sidewalk in the city of Ann Arbor. In support of their contention that the city should have known it, counsel for plaintiff say, “The place of the accident was but a few blocks from the business portion of the city.” What do they mean by “a few blocks,”- — -three, four, or five? For all that appears upon this record, it might have been a half mile from the principal business streets of the city. But this cannot make any difference. It was off the business streets, and there was no occasion for any officer of the .city to go there until in some manner notified of the condition. Moon v. City of Ionia, 81 Mich. 635, 642 ( 46 N. W. 25 ), is directly in point, and controls this case. The defendant in that case claimed that the walk was repaired August 15th. Plaintiff was injured on the 18th. It was held that, if this was so, actual notice of the defect was necessary. See, also, Smith v. City of Brooklyn, 36 Hun, 224 .

*137 Judgment reversed, and a new trial ordered.

The other Justices concurred.