Mullins v. Wayne County 16 Mich. App. 365

T. G. Kavanagh, J.*

Plaintiff’s decedent was killed when the car he was driving collided with a barrier at the terminus of Mortenview road in Wayne county. Mortenview road terminated at a dead end where it intersected Brest road. There was no sign or other warning device advising of the termination of Mortenview road.

The plaintiff’s complaint asserted that the defendant board of county road commissioners had a duty to keep and maintain Mortenview road in a reasonably fit and safe condition for public travel. It asserted that defendants Sell had a duty to maintain their property, which adjoined the terminus of Mortenview road, in such a manner as not to constitute a trap or hazard to persons lawfully using Mortenview road. The complaint asserted the defendants Sell breached their duty by erecting an im*371movable barrier on their property as they did. It asserted defendant board breached its duty by failing to warn against the terminus of Mortenview road and although it knew or should have known of the trap or hazard created by the barrier erected by defendants Sell, it breached its duty by failure to warn against it. The complaint further asserted that the negligence of the defendants was the cause of the injuries plaintiff suffered.1

*372The defendant board of county road commissioners moved for summary judgment and the trial court granted it.

After considering the matter carefully we are now convinced the trial court erred even as we erred in our prior decision in Mullins v. Wayne County (1966), 4 Mich App 359.2

I.

The prior decision of our Court would limit the road authority’s obligation under the applicable statute3 to preservation of the status quo. More *373specifically, if a road lias been),built and goes into* disrepair, the road authority is obliged to repair it. If it becomes obstructed,' the obstruction must be removed without regard to who places it there. If a sign has been erected an'd falls down, it must be replaced. But, says that opinion, that is where''the road authority’s duty ends.

The prior opinion italicized'the words “to keep in reasonable repair” in the quotation of the relevant portion of the applicable statute (see footnote 3 for text of statute). ' That “emphasis supplied” emphasizes the theoretical basis for the Court’s opinion, i.e., there is a duty to keep in reasonable repair —to maintain the status quo — but not a duty to construct or keep the road so that it is “reasonably safe and convenient for public travel”.

Such view was, indeed, once the law in Michigan but it has not been the rule since the enactment of the legislation here under consideration and the construction of that legislation by the Michigan Sq-r *374preme Court in Joslyn v. City of Detroit (1889), 74 Mich 458,4 and Malloy v. Township of Walker (1889), 77 Mich 448 (6 LRA 695). In Joslyn, the Court held that the road authority is liable not only “for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition, reasonably safe and fit for travel”. In Joslyn an obstruction was permitted to continue in the midst of the road without warning lights. In language which should guide us in this case, the Court declared (p 461):

“It [the statute] requires everything to be done by the city necessary to make travel upon its streets reasonably safe. If in so doing it becomes necessary to place signals or other safeguards at given points, or give other proper warning, it is the duty of the city to see that it is done or that the street is closed to travel; and that duty is imposed by the express language of the statute,' and the injury arising from the neglect of such duty to the citizen will make the municipality responsible to the party injured.”

In Malloy the Court carefully reviewed the history of prior decisions, including those to the effect that negligence in the plan of construction, as distinguished from negligence in the execution of the plan, ivas not actionable. It held that such earlier *375ease law had' been superseded by the enactment of the statutory language then before the Court and now before us.

The .specific allegation of negligence in Malloy shows that' the duty of the road building authority goes beyond the preservation of the status quo, that it does indeed have the affirmative duty to design and construct the road and keep it “reasonably safe and convenient for public travel”.

The specific claim of negligence in Malloy was that the road authority was negligent in not constructing railings or barriers alongside an embankment. The Michigan Supreme Court concluded that it was for a jury to. decide whether railings or barriers were required in the circumstances of the case then at bar. Thus, the Court, ruled that even if the surface of the road was perfectly engineered and constructed, the failure to design the road in a reasonably .safe manner, including the erection of railings and barriers, could be an act of negligence:

“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. The negligence consists, not in the plan of the work or the manner in which it was done, but in the failure to provide suitable protection against accident after the embankment had been made. The statute is imperative to make a road reasonably, safe, and whether it is in that condition of safety and fit for travel must be a question for the jury, under proper circum*376stances.” Malloy v. Township of Walker, supra, p 462.

For additional cases holding that the jury may find negligence for failure of the road authority to provide railings or barriers needed to keep the road reasonably safe and convenient for public travel, see Sharp v. Township of Evergreen (1887), 67 Mich 443; Ross v. Township of Ionia (1895), 104 Mich 320, 324; Hannon v. City of Gladstone (1904), 136 Mich 621; Lamb v. Township of Clam Lake (1913), 175 Mich 77; and Carpenter v. Township of Bloomingdale (1924), 227 Mich 355.

Harris v. Township of Clinton (1887), 64 Mich 447, 453, anticipated Malloy in holding that a jury question'was presented as to whether the road authority was negligent in failing “to place any barrier or warning” to prevent persons from driving upon and along a highway embankment which was washed and overflowed with water.' The Court declared :

“It should be remembered that the risk of driving-off the' embankment when obscured by the overflow .óf water was no greater than the risk of driving-off oh a dark night.”

And the risk of driving off the dead-end road in this case of Mullins at 3:10 a.m., the hour of the alleged accident, was.no greater than if it had been overflown with water. A short time before Harris v. Township of Clinton, supra, was decided the Court .observed: -

“I have no doubt that the defects in highways covered by the act of 18795 extend to defects in construction, ’ as well as clefects through omission to repair, and to neglect to keep the public highways *377in a condition reasonably safe and fit for travel by day or by night; and unless it is so kept, it constitutes a defect in the highway, for which, if injury results, an action will lie.” Carver v. Detroit & Saline Plank Road Co. (1886), 61 Mich 584, 590. (Emphasis supplied.)

That the early and continuing constructions of the statute by the Supreme Court are entitled to be regarded as legislatively approved in the light of the subsequent re-enactments which have not sought to change the applicable language, see McEvoy v. City of Sault Ste. Marie (1904), 136 Mich 172, 182.

Joslyn and McEvoy were recently relied on in Kowalczyk v. Bailey (1967), 379 Mich 568, 571. The Court quoted from McEvoy as follows:

“This act was open to two constructions, — one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use díte diligence to lceep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had •knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit (1889), 74 Mich 458, this Court deliberately adopted the first construction.”

The Kowalc&yk Court referred to the dissenting opinions in Joslyn and McEvoy and observed that “the views of the two dissenters never have prevailed in this Court.”

The principle that emerges is that as part of its duty to construct and keep the road reasonably safe and convenient for public travel the road authority *378is required to provide such devices at points of especial danger as may be necessary ’to warn the driver where the margins of the roadway end or to prevent his vehicle from leaving the road.

Here the plaintiff alleged the county’s negligence in failing to erect a visible barricade and signs warning that the road was about to terminate. Until the evidence of the plaintiff is heard, no court can decide whether sufficient evidence of causal negligence was introduced to make a question for .the jury on the pleaded issue whether the absence of such barriers and signs is negligence. ,

The prior opinion ignores completely the statutory requirement that the road be kept reasonably safe and convenient for public travel. According to that opinion it doesn’t make any difference whether the road leads over a cliff or into the Detroit river, whether there are railings or barriers, or whether manifestly dangerous conditions are warned against.

The argument made by the defendant that acceptance of plaintiff’s position would mean “every deviation in the direction or the surface of a road must be subjected to a test by a trier of fact for negligence” assumes, contrary to the law, that every claim, however absurd, must be submitted to the jury. Of course, every deviation in direction or surface will not entitle the suitor to go to the jury. In several cases where it was claimed that railings or barriers were required, the Supreme Court ruled that the plaintiff’s evidentiary showing was inadequate and that a jury would not be permitted to infer negligence from their absence. Canfield v. Township of Gun Plains (1913), 175 Mich 379, 384; Vose v. Township of Richland (1928); 242 Mich 46.

Ours is not a “deviation-in-the-direction-or-surface” case. This is a terminating road case. In all events, whether the evidence of causal negligence *379in a particular case entitles one to go to the jury is still a question of law for the court. Trial judges and the appellate courts will have no greater difficulty distinguishing an insubstantial case against a road authority than in a myriad of other cases where- courts are required to decide whether the evidence justified jury determination.

In Goodrich v. County of Kalamazoo (1943), 304 Mich 442, the Court distinguished earlier cases on the ground that “in practically all of them the accident resulted from a claimed defect in the traveled portion of the highway, or incident to some proper use of the shoulder.” That language was entirely appropriate in Goodrich where the tree against which the collision occurred “was a perfectly visible object and a warning to the public that at that point the shoulder was available for pertinent uses only to the width of 2-1/2 feet”.

The Goodrich Court, as in Canfield v. Township of Gun Plains, supra, and Vose v. Township of Richland, supra, simply declined to let the question of the defendant’s negligence go to the jury on the facts of the case there presented. In contrast, it is manifest that a reasonable trier of fact would be justified in concluding that a road, such as the road in this case, which abruptly ends without warning, has not been constructed or kept in a reasonably safe manner. Compare Sebert v. City of Alpena (1889), 78 Mich 165, where it was claimed a stump standing “so near the traveled part” of the street was dangerous in the night time. The Court held that:

“The statute applies to defects in construction as well as to neglect to repair when the road is unsafe; * * * dangers surrounding the traveler in the darkness of night are conditions that should be taken into consideration by the authorities whose *380 duty it is to construct and Iceep in repair the roadway.” (Emphasis supplied.)

and that it was a question for the jury whether the city had been negligent.

That the statute applies to “flagrant defects in the method of construction, as well as to neglect in repair”, see Schrader v. City of Port Huron (1895), 106 Mich 173, 175. The trier of fact should be permitted to decide whether the failure to erect a sign or barrier warning that the road was coming to an end was a flagrant defect in construction.

The prior opinion hypothesizes the every-deviation-in-direction-or-surface-of-the-road case. At the other end of the spectrum there is the highway terminating at the edge of a cliff or at the river’s edge without due warning. In such a case could we be heard to say that there was no duty because the empty air or water in which the unfortunate traveler descended to his demise was not part of the traveled portion of the highway?

II.

When Michigan adopted the uniform traffic signal control statute (MCLA § 257.610 [Stat Ann 1960 Rev § 9.2310])',' which authorizes the erection of traffic-control devices in the discretion of the sign-erecting authority, it did not thereby relieve the road authority of the duty imposed over 75 years ago to construct and keep the road reasonably safe and convenient for public travel. See State v. Watson (1968), 7 Ariz App 81 (436 P2d 175).

The argument in O’Hare v. City of Detroit (1960), 362 Mich 19, 23, that the case there before the Court was a particularly strong one because the missing stop sign had once been erected does, not constitute a holding that signs need never be erected in the *381first instance as part of the duty to keep the road reasonably safe.

It is a well-established principle that repeals by implication are not favored. The prior opinion acknowledges that the uniform traffic signal control statute and the 1909 statute which imposes upon road authorities the duty to keep roads under their jurisdiction in repair and reasonably safe and convenient for public travel are not in pari materia.

The road authority should no more be permitted to use the uniform traffic signal control statute as a shield to its statutory liability for construction of an unsafe road than the road authority in Malloy which unsuccessfully sought to “shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance therewith.” Malloy v. Township of Walker, supra, p 462.

For all the foregoing reasons the judgment of the trial court is reversed and the cause is remanded for trial. Costs to appellant.

R. B. Burns, Fitzgerald, J. H. Gtllis, and Levin, JJ., concurred with T. Gr. Kavanagh, J.

Lesinski, C. J. and Quinn, J.

(dissenting). Plaintiff filed a complaint against the county of Wayne, board of Wayne county road commissioners, Clarence Sell and Lois M. Sell. The complaint, which sought to establish liability under the wrongful death act, CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922), alleged that plaintiff’s decedent, at 3:10 a.m. on April 27, 1964, was traveling in a southerly direction on Mortenview road in Taylor township; that said Mortenview road was a terminating highway, and that defendants county and board of Wayne county road commissioners failed to post any suitable warning signs or devices warn*382ing that said road was a terminating highway. The complaint further stated that as a result of defendants’ failure to warn of this danger existing on the road, plaintiff’s decedent, who was driving on said Mortenview road, failed to stop or turn at the terminus of said road and collided with a harrier placed by defendants Clarence and Lois M. Sell on their property at the end of Mortenview road, and that this collision resulted in his death.

Defendants, county of Wayne and board of Wayne county road commissioners, filed a motion for summary judgment, asserting they had no duty to post warning signs or devices at the terminus of Mortenview road. The motion was heard, granted, and an order granting summary judgment of no cause of action as to defendants county of Wayne and board of Wayne county road commissioners was entered. Plaintiff appeals.

The issue before the Court is whether the authority having jurisdiction over the highway in question can be charged with negligence by virtue of failing to warn the public of the terminus of the highway. The liability sought to be enforced against defendants is purely statutory; the statute is in derogation of the common law and cannot be enlarged by construction. Goodrich v. County of Kalamazoo (1943), 304 Mich 442.

Plaintiff offers as evidence of the duty of the county to warn of the road’s terminus the provisions of CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121) which provide in part:

“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and contro] and which are open to public travel. The provisions *383of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system.” (Emphasis supplied.)

As interpreted by Goodrich, supra, this statute creates no duty on the part of the defendants to do anything about signs and warning devices. Negligence requires a breach of duty.

In conjunction with CLS 1961, § 224.21, supra, plaintiff cites CLS 1961, § 257.610 (Stat Ann 1960 Rev § 9.2310) as statutory authority establishing the duty plaintiff contends defendants have with respect to signs and warning devices. The latter statute reads in part:

“Local authorities and county road commissions in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn, or guide traffic. All such traffic-control devices hereafter erected shall conform to the State manual and specifications.” (Emphasis supplied.)

This statute is part of the vehicle code whose title-expressed purpose in this regard is “to provide for the regulation and use of streets and highways.” The section quoted is found in a portion of the code dealing with a uniform system of traffic-control devices, and it says no more than local authorities are given discretion to place and maintain traffic-control devices on highways under their jurisdiction to indicate and to carry out the provisions of the code or local traffic ordinances or to regulate, warn, or guide traffic. If they do so, the devices shall conform to the State manual and spec*384ifieations provided in CLS 1961, § 257.608 (Stat Aim 1960 Rev § 9.2308).

CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121) and CLS 1961, § 257.610 (Stat Ann 1960 Rev § 9.2310) cannot be read in pari materia to create the duty plaintiff asserts defendants bear in this action because the statutes do not relate to the same thing nor do they have a common purpose. City of Detroit v. Michigan Bell Telephone Company (1965), 374 Mich 543.

None of the cases relied on by plaintiff support the theory of liability asserted in this action. O’Hare v. City of Detroit (1960), 362 Mich 19, involved the failure of the highway authority to replace a previously erected stop sign; Joslyn v. City of Detroit (1889), 74 Mich 458, involved an obstruction placed upon and improperly allowed to remain on the highway; Longstreet v. County of Mecosta (1924), 228 Mich 542, involved a washed-out bridge; Jewell v. Rogers Township (1919), 208 Mich 318, involved a deep trench cut across an established highway by a quarry company. In each of these cases the road authority had maintained the road in a certain condition, and the duty found was to continue the road in that condition or properly to warn the public of any changes that created a dangerous condition. This is not the case before us.

The acceptance of plaintiff’s theory of liability in this case would mean that failure to warn of every deviation in the direction or surface of a road creates a question of fact with respect to the highway authority’s negligence in accident litigation. This we decline to do in the face of the applicable statutory provisions.

It may well be that current traffic conditions and driving habits dictate that defendants should have the duty that plaintiff here asserts, but that is for *385the legislature to say. It is not for this Court to establish such a duty by enlarging the statute by construction. Summary judgment was proper under the existing law.

We vote to affirm, but without costs, a public question being involved.

McGregor, J., concurred with Lesinski, C. J. and Quinn, J.

Holbrook, J.

(dissenting). After careful review of the law applicable to the instant case and the opinions of my brother judges, I find it necessary to deal with the matter further in this separate opinion.

The facts are repeated as stated in Mullins v. Wayne County (1966), 4 Mich App 359, 360, 361:

“Plaintiff filed a complaint against the county of Wayne, board of Wayne county road commissioners, Clarence Sell. and Lois M. Sell. The complaint, which sought to establish liability under the wrongful death act, CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922), alleged that plaintiff’s decedent, at 3:10 a.m. on April 27, 1964, was traveling in a southerly direction on Mortenview road in Taylor township; that said Mortenview road was a terminating highway, and that defendant county and board of Wayne county road commissioners failed to post any suitable warning signs or devices warning that said road was a terminating highway. The complaint further stated that as a result of defendant’s failure to warn of this danger existing on the road, plaintiff’s decedent, who was driving on said Mortenview road, failed to stop or turn at the terminus of said road and collided with a barrier placed by defendants Clarence and Lois M. Sell on their property at the end of Mortenview road, and that this collision resulted in his death,

*386“Defendants, county of Wayne and board of Wayne county road commissioners, filed a motion for summary judgment, asserting they bad no duty to post warning signs or devices at the terminus of Mortenview road. The motion was heard, granted, and an order granting summary judgment of no cause of action as to defendants county of Wayne and board of Wayne county road commissioners was entered. Plaintiff appeals.”

The legislature in its wisdom, as early as 1893,1 granted limited abrogation of governmental immunity as to suits against a county for improper maintenance of county roads. The act has been amended many times. In its present form, CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121) provides for the liability, procedure and remedy as to county roads under the jurisdiction of a county road commission. It reads in pertinent part as follows:

“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and covenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system.”

This legislative act granting limited abrogation of governmental immunity has not been changed by the rulings of onr Supreme Court in Myers v. Genesee County Auditor (1965), 375 Mich 1 and Williams v. City of Detroit (1961), 364 Mich 231. The liability of defendant Wayne county is therefore *387restricted to a cause of action based upon the failure of the county road commission to comply with the statute. This decision is consonant with the present law as to governmental immunity in this State.2

Plaintiff’s complaint, in order to properly state a cause of action for negligence against the defendant county must be grounded on CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121). The complaint should contain allegations that (1) the highway was not maintained in a condition reasonably safe and fit *388for travel, (2) the comity has knowledge or notice or should have had knowledge or notice of the dangerous condition which it refused, failed, or neglected to correct, (3) the injury or injuries to plaintiff were caused in fact or proximately caused by the county’s alleged breach of duty, and (4) the plaintiff sustained damages.

The trial court’s granting of summary judgment in favor of defendant was proper in that plaintiff’s complaint was deficient because it failed to allege the second and third elements outlined above.

Plaintiff, by her complaint, bases her cause of action on a claimed violation by defendant of CLS 1961, § 257.610 subd (a) (Stat Ann 1960 Rev § 9.2310 subd [a]) which reads as follows:

“Local authorities and county road commissions in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn, or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications.” (Emphasis supplied.)

The foregoing statute providing for signs and traffic-control devices is not a part of CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121) providing for liability nor is it incorporated therein by reference or otherwise. Absent liability based upon reference, and with failure of the legislature to create liability on the part of the county for its failure to place signs or traffic-control devices on its highways in the act itself, no liability can be imposed. CLS 1961, § 257.610 subd (a) (Stat Ann 1960 Rev § 9.2310 subd[a]) does not mandatorily require a county road commission to place traffic-control signs or de*389vices oil highways under its jurisdiction. Although it may be advisable for a county road commission to “place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn, or guide traffic” in its efforts to reduce the number of traffic accidents occurring on its highways and to effectively defend lawsuits claiming failure on its part to meet the duties imposed upon it by virtue of CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121) such action is not required. (Emphasis supplied.)

Arguendo, the defendant county herein may have avoided possible liability for the claimed faulty construction and maintenance of Mortenview road, a terminating highway, by simply determining the need for and erecting a traffic-control sign or device, e.g., a stop sign, at the intersection so that all vehicles using Mortenview road would have been required to stop before turning onto the intersecting highway. Had such a stop sign been placed and maintained at the terminating point of Mortenview road, the possibility of a lawsuit against the defendant county herein would have been negligible.

The failure of the county road commission to place and maintain a proper traffic-control sign or device may deprive defendant of a possible defense but such failure does not grant plaintiff a cause of action under the laiv.

The summary judgment of dismissal in favor of defendant should be affirmed. No costs, a public question being involved.