148 Wis. 72 | Wis. | 1912
A new trial in this case was granted on tbe ground that tbe verdict was against tbe weight of evidence. Tbe verdict was for tbe defendant and it appealed.
One point made by tbe defendant is that tbe complaint did not state a cause of action, and there was an objection at tbe trial to tbe reception of any evidence thereunder. This objection, it contends, was erroneously overruled, hence that all tbe evidence was wrongly received, and for this reason tbe verdict was not against tbe weight of evidence, but tbe circuit court abused its discretion in granting tbe new trial on that ground because there was not only no weight of evidence but no evidence. This position has a captivating semblance of
On the question of plaintiff’s right to recover as for a change of grade the evidence to show that the street was formerly constructed and paved to the established grade is not wholly lacking. It consists of a showing that after the ordinance of 1888 established the grade a granite block pavement was ordered by the city authorities and this order was rescinded. On November 19, 1888, the board of public works sent a communication to the common council to the effect that, upon the request of property owners (abutters), permission was granted them by the board to do the- work with cedar blocks. That the landowners did so and at the same time paved the crossings and gutters, and for the latter ought to be reimbursed by the city. The common council took action on this communication, apparently recognized this arrangement of the board of public works by allowing • these claims for reimbursement. The witness Steinman, who was an alderman and an occupying abutter in the street in question at that time, describes this cedar block paving and the
It is further contended that tbe city engineers bad no lawful right to represent tbe city in this matter and that tbe city inspector bad nothing to do with tbe grades. Granting all this, it only goes to defeat any claim of estoppel against tbe city. It does not disable these acts as evidence tending to show that tbe pavement was laid to tbe established grade. These are acts from which, with tbe uncontróverted fact that the paving was done with tbe consent of tbe board of public works and tbe city council, tbe jury might infer that the paving was put down upon tbe lawful grade level. There is evidence to tbe contrary, consisting mostly of measurements made some years before and some years after tbe paving in question. But the effect of these measurements as evidence is weakened by other evidence showing that tbe ground in ' this vicinity was soft and marshy and tbe street surface liable to sink.
We cannot say that there was no evidence before tbe jury which might entitle tbe plaintiff to recover oh this ground.
By the Court. — Appeal dismissed.