156 Wis. 650 | Wis. | 1914
It appears that tbe appellant considered that tbe complaint intended to charge it with negligence in respect to tbe maintenance or construction of tbe sidewalk in question and accepted an issue on tbat basis and tried it out, so that we have now no right to reverse in this court for insufficiency of tbe complaint. We presume tbe first assignment of error is based on tbe testimony of Mr. Salzstein, to whose statement tbat be found broken pieces of stone on tbe walk where tbe injured man was sitting an objection was made on tbe ground tbat tbe evidence relating to tbe condition of tbe walk was not within tbe pleadings and was immaterial, etc. It is to be observed tbat tbe defendant justified its maintenance of this temporary sidewalk in tbe street on tbe ground tbat it was engaged in tbe construction of an adjacent building and bad1 received authority from tbe city to place this temporary sidewalk in tbe street. It was competent in rebuttal of such claim to show tbat notwithstanding such permit tbe temporary sidewalk was unlawful because constructed and maintained in a manner dangerous to pedestrians. No permit can justify such construction and maintenance, and tbe dangerous character of tbe construction and maintenance effectually overcame any claim of immunity by reason of tbe order of tbe city authorities. This evidence was also competent in rebuttal of tbe affirmative matter in tbe answer. Objection to the general sufficiency of tbe complaint could not be taken in this indirect way. To do so would bring about tbe anomaly of defendant trying this question on tbe merits, and if successful having a judgment in bar upon a point which be considered necessarily involved for tbe purpose of using it as a defense, but irrebuttable because of defects in tbe complaint. Tbe defects in tbe complaint could only be reached by demurrer, by motion, or by objection made before entering upon tbe trial to tbe reception of any evidence on tbe ground tbat tbe complaint did not state a cause of action.
Taking up tbe case on tbe evidence, we discover evidence
The distance from the curb to the first rail was thirteen feet seven inches. The railing mentioned on the temporary walk was distant from the curb ten feet six inches. The temporary walk twenty-five inches wide; the overhang of the car was nineteen and one-half inches beyond the outside of the rail. This would leave quite a portion of this temporary sidewalk under the overhang of a passing car. With the pedestrian crowded over toward this portion of the walk by the crushed stone which overflowed upon the other side of the temporary sidewalk, there is quite a basis for the jury’s finding of appellant’s negligence in the construction and maintenance of the temporary sidewalk. There is also evidence from which the jury might properly find that the plaintiff was not guilty of contributory negligence. The sidewalk was a standing invitation to him to use it. He must use it in common with other pedestrians in the ordinary way, following, preceding, meeting, and passing. He may have failed to observe its dangerous proximity to the street railway or not have known the extent of the overhang of the street car or of the presence of the crushed stone on the narrow sidewalk or that a street car would overtake him at any particular point on this sidewalk, and it is very difficult for a court dealing with law, not facts, to say that he ought in the exercise of ordinary care to have known of the danger and to have avoided it.
The jury having become convinced of the negligence of the appellant in the mentioned particulars, the question whether or not that negligence caused the plaintiff’s injury was purely a question of fact.
It is claimed that the damages, are excessive. The plaintiff is a man seventy-two years of age, had one of his feet crushed almost to a pulp. Three fourths of his foot was afterward amputated and there was an operation of skin-grafting neces
By the Court. — It is so ordered.