112 Wis. 475 | Wis. | 1901
1. The defendant challenges the sufficiency of the complaint. The allegation regarding the alleged defect in the sidewalk, set out in the statement, is quite indefinite. It would have been susceptible to a motion to make-it more definite and certain. There is enough, however, stated to bring the pleading within the line of cases mentioned in Doolittle v. Laycock, 103 Wis. 334, and Olson v. Phœnix Mfg. Co. 103 Wis. 337.
2. Plaintiff made a fair case for consideration by the jury by testifying to facts concerning which he had no knowledge. He testified to the depth of the hole where he fell, to the absence of stringers under the walk, and to the presence of snow and ice on the walk, but admitted that he knew nothing about the actual fact except as he had been told. A motion was made to strike out such testimony, but was denied by the court. Such ruling was plainly erroneous. The facts mentioned were vital to the plaintiff’s case. Besting entirely upon a hearsay foundation, such testimony should have been stricken out and the jury instructed to disregard it. The rule in that regard is so well understood^
3. Defendant complains because the court refused to allow the jury to be taken to view the premises. This was a matter within the reasonable discretion of the court, and we think he exercised that discretion properly. Pick v. Rubicon H. Co. 27 Wis. 433; Boardman v. Westchester F. Ins. Co. 54 Wis. 364; Andrews v. Youmans, 82 Wis. 81.
4. Another important question arises on the motion for a direction of a verdict. It will be observed that the alleged insufficiency of the sidewalk consisted of a depression of about four inches, coupled with an accumulation of snow and ice. In his description of the accident and the condition of the walk the plaintiff most effectually impeached himself. He testified repeatedly that he stepped in a hole in the walk; that the hole was four inches deep; that the stringers to the walk were gone; that the boards were loose; and that the walk was partially covered with ice and snow. He admits, however, that he had never examined the spot; that the accident happened between 7 and 8 o’clock in the evening in the month of February; that it had been snowing a short time before; that it was very dark,— so dark that he could not see; that all he knew about the depth of the hole was what some one told him; and that he knew there was snow and ice on the walk because they told him so. These circumstances indicate that no weight can be given to his testimony regarding the condition of the walk. The only corroboration he received is from two witnesses who went to the place of the accident and assisted him home. They gave no testimony as to the care used in examining the place, or that they had any knowledge of its condition previously, except that one witness testified that there had been a depression in the walk some weeks or months before the accident. It is undisputed that at the time they were with plaintiff it was so dark that they could
Six witnesses for the defendant examined the place the following morning, and another (the assistant city engineer) about a week afterwards and before any change had been made in the general features of the walk. The engineer made measurements, and caused a plat of the location to be made, which was introduced in evidence. It appears that some months before the accident a sewer or water trench had been dug from the street to the lot across the line of the sidewalk, and that, either by action of the water or insufficient filling, the ground beneath the walk had sunk, causing a depression in the walk below the level. According to the engineer’s plat and the description by the witnesses, this depression was eight feet long, lengthwise of the walk. As one of the witnesses described it, “It commenced with nothing and ended with nothing.” On the north side of the walk the lowest point was three inches, at the center two inches, and at the south side one and one-half inches; the descent from each end of the depression being gradual. The testimony of
“ If there was no actionable defect on account of the incline, the slippery condition resulting from ordinary accumulations of ice in winter, when such accumulations are smooth, does not constitute a defect.”
5. The following requests to charge the jury were made by the defendant and refused by the court:
“ If you find from the evidence that the depression in the sidewalk at the point where plaintiff fell consisted of a decline or slope from east to west and west to east of not to exceed three inches in four feet, and that no unusual or extraordinary accumulation of snow or ice had taken place there, or if you find that such snow or ice as existed at such place was practically level, and was not so lumpy, rough, and uneven as, in connection with said depression, to render the walk unsafe for travelers on foot, in the exercise of ordinary care, then I charge you that you should answer the fifth question in the negative.”1
*482 “ And I farther charge jmu that, in determining where the clear preponderance of the credible evidence is, you are not to ignore or disregard the direct, positive evidence of witnesses who made measurements as to certain facts in dispute in this case, and, so disregarding such evidence, find the fact to be in accordance with the testimony of witnesses who, without making such measurements, merely estimate or give their judgment of the same, as the testimony of witnesses who have measured distances and made memoranda of such measurements at the time of taking, if otherwise credible, is of greater weight than the evidence of witnesses who merely give their recollection based upon estimates of such distances.”
The first of these requests was directly applicable to the case as made by the defendant, and, if the court believed the case such as"should have'been submitted to the jury, it should have been given. It was fully warranted by the language of the decision in De Pere v. Hibbard, 104 Wis. 666. The second request was also proper, and should have been given. It was a correct legal proposition to say that the evidence of witnesses who had made measurements was of greater weight than evidence of witnesses who made casual estimates, if otherwise credible.
By the Court.— The judgment is reversed, and the cause is remanded for a new trial.