180 Wis. 292 | Wis. | 1923
It does not appear from the record upon what ground the circuit court reversed the judgment of the civil court. The defendants here attempt to sustain the order of the circuit court upon two grounds: first, that there is no evidence to sustain the finding of the jury to' the effect that the plaintiff tripped over the hoop or wicket in question; and second, that the plaintiff was guilty of contributory negligence under the provisions of sec. 1, ch. 430, Laws 1887, which is sub. 65, sec. 3, ch. IV, of the Milwaukee city charter, which, after authorizing the common council of the city of Milwaukee to prescribe by ordinance the erection of guards
“And any person who shall hereafter receive any injury by reason of his or her stepping on the said space between the sidewalk and the curb, or by reason of his or her stepping or running against any such guard . . . shall be deemed guilty, of contributory negligence, and shall not recover any damages therefor.”
The jury found that the plaintiff tripped over the wicket and that the wicket in question was placed so near the sidewalk as to render the sidewalk dangerous and insufficient for public travel.
Without setting out the evidence in detail, it was ample to sustain the finding of the jury. The verdict had the approval of the trial court, and if there was sufficient credible evidence sustain the jury’s verdict, then the circuit court was clearly in error in setting it aside. While the plaintiff herself was unable to testify as to just exactly what she tripped over, one of her companions did so testify, and it further appears that the wicket in question had.been displaced and there wére marks upon the plaintiff’s ankle which clearly indicated that it had come in contact with some object which caught her foot at the time she fell.
As to the second proposition, ch. 430 has no application for the reason that it does not appear that the common council of the city of Milwaukee has ever exercised the power conferred upon it by that chapter.
By the Court. — The order appealed from is reversed, with directions to the circuit court to enter judgment affirming the judgment of the civil court.
