40 `FEDERAL mcronrmn.
of such duty would have led to a knowledge of the defect which was the
immediate cause of the accident. Weisenberg v. Appleton, 26 Wis. 56;
City of Ripon v. Bittel, 30 Wis. 614; Gude v. Mankato, 30.Minn. 256, 15
N. W. Rep. 175; Aurora. v.HiZl—mctn, 90 Ill. 61, 90; Boucher v. Mew Hm
cen, 40 Conn. 456; Cusack v. Norwich, Id. 376.
The case of Ring v. Cbhoes, 77 N. Y. 83, cited by the defendant, is not
in point. In the case of ilk00ct v. Grand Rapids, 58 Mich. 41, 24 N .V
W. Rep. 631, which was an action for injuries received by a horse in
stepping on a cobble stone, of which there were several scattered about
the streets, Mr. Justice CHAMPLIN, in delivering the opinion of the court,
observed, obiter, that the proof showed that the horse was injured by
stepping upon a single stone, and that the existence of other stones in
the street had nothing to do with the injury. The remark was not" nec-
essary to the decision of the case, and the question as to the existence
of other stones apparently did not arise. We do not understand the
learned judge as having decided that the existence of other stones in the
street might not have been evidence of notice to the city. But in any
r event the case is not entitled tor great weight as authority, as the judges
were equally divided in opinion. Y
4. That the court erred in admitting the testimony of the witness Aus-·
tin as to the condition of the walk after the accident. The witness iirst
testified as to the physical condition and state of health of the plaintiff
prior to and up to the time of the accident, and, for the purpose of tix-
ing the time when he heard of the accident, he said. the went with the
h plaintiff ’s husband to the spot where the accident occurred about a week
` afterwards, and found that the walk had been repaired. We think that
the testimony that the walk had been repaired was some evidence tend-
ing to show that the walk was out of repair at the time of the accident,
and was in the nature of an admission which was competent to go to the,
jury. If not, the testimony was merely immaterial, and worked no in»
jury to the defendant.
, 5. That the court erred in refusing to charge that, the act of 1885 having
abrogated the common—law liability of the city, plaintiff could not re-
· cover; and also that under the act of 1885, if the plaintiff could recover
at all, she could not recover to exceed the sum of $1,800.
The history of the law of Michigan upon the question of liability for
injuries received upon defective sidewalks may not be out of place here.
In City of Detroit v. Blalceby, 21 Mich. 84, it was held by a divided court
that, in the absence of a statute Lo that effect, the cities of this state were
not liable for damages received by defective sidewalks, and that remained
the law of the state until 1879, when the first act was passed. The fed-
eral courts, however, had felt themselves bound by precedents of the su-
preme court, and had established a different rule, the consequence of
. ` which was that aliens and non-residents were permitted to recover for
such injuries when citizens of this state could not do so. In 1879 an
act was passed making all townships, villages, and cities liable to per-
sons sustaining bodily injury upon any of the public highways or streets
' by reason of neglect to keep such highways and streets, and "all bridges,