Fife v. City of Oshkosh

89 Wis. 540 | Wis. | 1895

Cassodav, J.

i. It is contended in behalf of the city that ch. 471, Laws of 1889 (secs. 1339J, 1339c, S. & B. Ann. Stats.), made Beclmith, as abutting lot owner, primarily liable for the damages in question, and hence that the trial court improperly granted a nonsuit in his behalf and at the same time refused a nonsuit in favor of the city. But that chapter does not undertake to create a liability against the adjoining lot owner, but merely to authorize an action against both the municipality and the wrongdoer. Cooper v. Waterloo, 88 Wis. 438. Besides, the act was not passed until some •months after the injury in question. The mere fact that the charter made it the duty of the aldermen to keep the sidewalk in repair, and free and clear from all obstructions, at the expense of the adjoining or abutting lot thereon and the owner thereof, in case the owner or occupant failed to do so, did not make such owner or occupant primarily liable: Ibid. The provisions of the charter in question are in this respect, in effect, the same as in Cooper v. Waterloo, supra. What is there said disposes of this branch of the case. Here the ' ward is made liable to the city, and the occupant of the lot abutting upon such defective sidewalk is made liable to the ward. Sec. 29, subch. 10, ch. 183, Laws of 1883. Under the charter as it now stands the city is primarily liable. The statute in force at the time of the injury gave to the plaintiff no right of action therefor as against the lot owner. She certainly had no such right of action at common law. The nonsuit in favor of Beckwith was properly granted.

2. The evidence is sufficient to support the finding of the jury to the effect that the alderman had knowledge of the defect before the injury, and that the city was guilty of negligence which caused the injury. It does not appear that the plaintiff was guilty of contributory negligence. No-error was committed in refusing a nonsuit in favor of the city.

The city can take nothing by its appeal, and so far as the judgment is against it and in favor of Beckwith the same is affirmed.

3. Error is assigned in behalf of the plaintiff because the court refused to allow her damages for loss of time, as assessed by the jury at $1,000. At the time of the injury the plaintiff was a cloak maker, and had been for several years. Sbe appears to have conducted, such, business in her own name, and separately and independently of any business of her husband. He does not appear to have participated in such business in. any way. Prior to the injury, she had received, on the average, from the business at least $10 per week. She was entirely disabled and prevented from attending to her business for four or five months, by reason of such injury. After the expiration of the four or five months she was unable to do half as much as prior to the injury. The evidence tends to show, that she was permanently disabled, and is apparently sufficient to support the verdict. The question recurs whether the damages resulting from such loss of time belonged to her or her husband.

The statute provides that “the individual earnings of every married woman, except those accruing from labor performed for her husband, or in his employ, or payable by him, shall be her separate property, and shall not be subject to her husband’s control, or liable for his debts.” R. S. sec. 2343. The case does not appear to come within any of these exceptions. Under this statute this court has gone so far as to hold that “ a wife may lawfully contract with a firm, of which her husband is a member, to run a boarding house for them for a stipulated share of the profits, and the share so earned by her will be her separate estate.” Brickley v. Walker, 68 Wis. 571, 573. See, also, Barker v. Lynch, 75 Wis. 624. From the discussions and decisions in these cases-it logically follows that the damages in question belong to the plaintiff as “ her separate property,” within the meaning of the statute quoted. Under the' statute she was authorized to “ sue in her own name ” and “ have all the remedies of an unmarried woman in regard to her separate property or business,” and also to “ bring and maintain an action in her own name for any injury to her person or character the same as if she were sole.” S. & B. Ann. Stats. sec. 2345; Shanahan v. Madison, 57 Wis. 276; Carney v. Gleissner, 62 Wis. 493; McLimans v. Lancaster, 63 Wis. 599-602. It is unnecessary here to add to tbe discussion in tbe cases cited. Tbe plaintiff is entitled to recover for ber loss of time, as well as ber pain and suffering, as found by tbe jury. ' '

By the Oowt.— That part of tbe judgment of tbe circuit court appealed from by tbe plaintiff is reversed, and tbe «cause is remanded witb direction to enter judgment in favor ■of tbe plaintiff and against tbe defendant city in accordance witb this opinion.