Bergevin v. City of Chippewa Falls

82 Wis. 505 | Wis. | 1892

LyoN, C. J.

The special verdict returned by the jury, if allowed to stand, undoubtedly entitles the defendant city to judgment; for, however defective the sidewalk in question may have been, the finding that the city had no notice of such defects before the plaintiff was injured is fatal to a recovery. It has been urged that the finding is not sufficiently comprehensive to relieve the city from liability, because it is not found that the defect had not continued a sufficient length of time to charge the city with constructive notice of its existence. Rut, under the charge of the court, that proposition is included in the' finding, for the instruction was that if the alleged defect had existed so long that the city officers, in the exercise of reasonable diligence, should -have discovered it, the jury should find that the city had notice. Hence the finding covers the whole subject of both actual and constructive notice, and negatives the existence of either. It thus exonerates the city from liability for the injury. So, if the fifth finding is upheld (no other error intervening), the judgment cannot be disturbed. That finding must be upheld unless the court can say that it is against the uncontradicted testimony in the case.

The sidewalk in question is on the principal street of the defendant city, and at the point of the accident was about nine feet wide. It rested upon sleepers two by eight inches in size, placed sixteen inches apart, and running parallel with the street. These were covered with $~inch boards, matched together and tarred on the upper surface, and on these, and parallel with them, l|-inoh planks were laid, entirely covering such boards. The support of the sidewalk next the street was an area brick or stone wall, beyond which the ends of the planks extended towards the gutter ten or eleven inches. By the backing of drays and other vehicles against the projecting ends of these planks they had become broken, but outside the area wall. It is not claimed, and there seems to be no testimony tending to prove, that such breakages had anything to do with plaintiffs injuries. The plaintiff came out of a saloon, and as he was walking along the sidewalk a short distance from the saloon door he was thrown down and received the injury complained of. The testimony tends to show' that he stepped into a hole in the sidewalk, inside the area wall, of sufficient size to receive his foot, and that this was the cause of the accident. The testimony also tends to show that such hole had been there for several months. "Were the proof conclusive that the hole had been there for a considerable time, the fifth finding could not be upheld. But it is not conclusive. There is much testimony in the case tending to show that there was no hole in the sidewalk inside the area wall, or, if there was one, that it had been there but a very short time before the plaintiff was hurt. The testimony tends to show that there was no break in the lining or board part of the sidewalk at the time of 'the accident or for a long time afterwards, and that the hole in question was a mere partial break in a plank which caused it to yield under pressure.

It is true the street commissioner, before the accident, had ordered the occupant of the property abutting the alleged place of injury to repair the sidewalk; but it conclusively appears that the order related only to the broken ends of the planks outside the area wall. This is not proof that the city had notice that there was a hole therein inside of such wall. It is also true that an alderman of the city testified to the existence, for several months before the accident, of the alleged hole; but manifestly the jury disbelieved his testimony, which it was competent for them to do. It is useless to state the testimony further. After a careful examination of it we are satisfied that it sustains the fifth finding in the special verdict.

No instructions to the jury were proposed on behalf of the plaintiff. Some criticisms are made upon the general charge. ¥e think none of the exceptions thereto are well taken. "We find no reversible error disclosed in the record.

By the Court.— The judgment of the circuit court is affirmed.