52 Wis. 657 | Wis. | 1881
The first objection is stated in the record as follows: Plaintiff’s counsel, after proving, by the register of deeds of the county, that a certain book he had in court was volume 2 of plats in his office, and that the plat of the village of Edgerton was recorded therein, offered the same in evidence. The defendant’s counsel objected, “for the reason that there was no certificate on the plat as required by law at the time it was recorded.” To this objection the court made the following inquiry: “ The certificate is not on that plat? ” Defendant’s counsel replied, “ It is annexed to it; it is required by law to be upon it.” To this the court replied, “ If that be the only objection, I think it must be admitted. There are, obviously, two papers, but they are so attached together that really I think they must be regarded as one paper.” The objection was overruled, and the record admitted in evidence. This is all there is in the bill of exceptions upon the subject. The record is not made a part of the bill, nor is it otherwise shown how the certificate required to be made by the owner of the property platted was connected with the original plat.
Under section 2261, R. S. 1878, the certificate of the owner may be indorsed thereon or attached thereto. The statutes of 1849 and 1858 required that the certificate of the acknowledgment of the owner should be indorsed on the plat or map, and that the certificate of the survey and of the acknowledgment should be recorded, and form apart of the record. We cannot determine, from anything which appears in this record, that the certificate of acknowledgment of the owner was not indorsed upon the original plat. The fact that the record of the plat might have appeared to be upon two papers, does not
In the only case I have been able to find where it is clear that the legislature intended to require that one writing should be written upon the back of another writing or map, it is so required in express words. See sec. 5, ch. 22, Laws of 1876. This is a statute authorizing lands to be platted for the purpose of assessment of taxes, and it expressly requires that “ the person so signing such map and certificate shall acknowledge the same before some officer authorized to take the acknowledgment of deeds, whose certificate of acknowledgment, in the usual form of deeds, shall he written topon the bach of such map and duly signed by the officer signing the same.” This may, I think, be invoked as a legislative construction that the old words, “ indorsed on the same,” do not necessarily mean “written on the back thereof;” otherwise it would have been sufficient to use the old form of words. In the revision of 1878 it was thought best to repudiate the strict requirement
There is another reason why, even if the ruling of the circuit judge upon this question were erroneous, it should not affect the judgment. Independent of the plat, there was abundant evidence in the case showing that the locus in quo was a highway which the town was bound to keep in repair. The evidence not only shows a public irse of the locus as a highway for twenty years and more, but it also shows that the overseer of highways covered the ditch in question at the place where the accident happened, three or four years previously.
The only other error assigned by the learned counsel for the appellant was the refusal of the court to permit the witness J. B. Towne to answer the following questions: Question. “ When those windows are lighted on a dark evening, what effect does the light have? Where is the light thrown with reference to this plank-covered ditch and the ditch itself?” Question. “ ITave you noticed the effects, how far the light is thrown and its effect upon the street in lighting it up there? ” Question. “ State to what extent the light of the windows, on a very dark night, throws the light.”
These questions relate to the effect which the lights in the meat market, bakery and confectioneiy shop had in lighting up the street where the accident happened. The witness had stated that he had seen those lights lit in dark nights a great many times. Immediately after the court had refused to let him answer the questions above quoted, he was permitted to answer the following'question: “IIow much space is within the range of light from those windows you have spoken of in this bakery?” Answer. “The whole street along there is within the range of the bakery, ordinarily, in a dark night.” And to this question, put by the court, “ How much of this
The learned judge also refused to permit the witness to answer the following questions: “ ITow light is that covered ditch made there on Swift street up’to the point of the accident, ordinarily, on a very dark night, when those windows are lighted up?” “ On a very dark night, between 7 and 8 o’clock, when those windows are lighted up in the bakery and confectionery shop in Burdick’s block, do they throw sufficient light on this covered ditch and the point of the accident, that they can be plainly seen by any person walking along there, both at the north end of the plank, where the ditch is uncovered, and the covered plankway itself? ” “ When those windows are lighted up in the bakery and confectionery shop in Burdick’s block,— take it on a very dark night, between 7 and 8 o’clock on the 13th of January, or about that season of the year,— is there sufficient light thrown from the windows to light up the ditch at the point of the accident, and the covered end of the ditch, so that the end of the plank and ditch would be plainly visible to any one going along?”
Some other questions of a similar import were put to the witness for the purpose of showing that the lights from these windows lighted up tire street and place of the accident, so that a person traveling along there could see the covering of the ditch, and the end of the covering where the accident happened; all of which were excluded. While we are all of the opinion that the questions were proper and pertinent, and that the court should have permitted the witness to answer them, we are also of the opinion that the judgment ought not to be reversed because they were not answered.
It will be seen, by a careful inspection of the record, that no objections were made when like questions were afterwards put to, and answered by, the defendant’s witnesses. The counsel for the plaintiff evidently concluded that it was not safe to
Bowen, a witness for the defendant, testified: “I have had occasion to'go there nights, and have seen the windows in this confectionery and bakery shop, and rooms north of them, in the Burdick block, and the lamp outside was lighted, and also the windows in the butcher shop across the way were lighted. I have noticed that you could see in between the blocks there very plainly in dark nights, as you were going along, so that you could see the plank covering the ditch, and the ditch itself. I was called there the evening of. the 8th of the present month, about 7 o’clock in the evening. When these rooms were lighted up, I could see across the street, and could see the end
Pomeroy, another witness for the defendant, testified: “ Have been in this bakery spoken of in the evening when it was dark outside, and when the lamps were lit in the bakery and adjacent rooms, and the lamp over the door also. The light from the window sufficiently lighted Swift street, so a person could travel the street, and see any irregularities in it. These lights were lighted by Miss Maultpratt, on the evening of the 8th of this month, at my request, and I noticed that the light was sufficient to see anything in the street. I could see the end of the ditch plainly, and the plank covering the ditch, from the walk on Front street, from the light thrown out of those windows.”
C. L. Brown, a witness for the defendant, testified: “I have not noticed the windows there particularly when they were lighted up in the evening. I have had occasion to go in there a good many times. I have never noticed particularly in a dark night the extent of light thrown from those windows oir Swift street, with the exception of the night spoken of, the 8th of Uovember. I was standing on Front street, at the south end of the ditch. From there I could see where the planks stopped very plainly.”
Humphrey, a witness for the defendant, testified: “I have frequently-gone up Swift street to my stable in the night — • very dark nights. It was light enough to see where I was going. In passing along there I don’t generally go on the plank. I generally go along-side of the plank.”
In view of the fact that this question, as to the effect which the lights in the bakery, confectionery shop and meat market had upon the place of the accident, was so fully gone into by the defendant, after the ruling of the learned circuit judge upon the questions above stated, without objection, and as there
This question as to the effect of the lights in the adjoining buildings at the time and place of the accident was fairly submitted to the jury by the learned circuit judge in his instructions, to which no exceptions were or could be successfully
On the whole record the case seems to have been fairly tried, and the verdict and judgment well supported by the evidence.
By the Court.— The judgment of the circuit court is affirmed..