121 Wis. 609 | Wis. | 1904
The appeal was not taken within the time provided by secs. 925 — 58 to 925 — 60, Stats. 1898, which were the law of the appellant city and governed the subject, except as modified by ch. 68, Laws of 1901. The first of such sections is to the effect that any claim or demand presented to the city council for allowance, and not acted upon within sixty days thereafter, shall be deemed disallowed; the next is to the effect that disallowance by the common council of any such claim, actual or constructive, shall preclude any action to enforce the same in the absence of an appeal from such disallowance having been taken as provided in the next section, which is to the effect, among other things, that the appeal must be taken within twenty days after the decision of the common council, the time limited therefor under any circumstances being eighty days after the filing of the claim with the city clerk. Mason v. Ashland, 98 Wis. 540, 74 N. W. 357.
As the taking of the appeal within the time required by law is essential to the cause of action, jf that does not appear by the complaint, where one is served, the same is open to a demurrer for insufficiency. Koch v. Ashland, 83 Wis. 361, 53 N. W. 674; Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006; Morgan v. Rhinelander, 105 Wis. 138, 81 N. W. 132. The complaint here does not show that the appeal was taken within eighty days after the claim was filed, but does show that no notice was served on respondent of action or nonaction thereon by the common council. By reason thereof, it is claimed by respondent’s counsel, the time for taking her ap
“Whenever any city council shall have disallowed any claim or permitted the same to be disallowed, wholly or partly, by its failure to act thereon within the time limited by law, the clerk shall prepare a notice of the action or non-action of the council upon such claim . . . for service on the claimant if he reside within such city. ... If the claimant be a nonresident the clerk shall transmit such notice by registered letter through the mail. Any time limited for appeal by the claimant from the determination of his claim by the common council shall begin to run when such notice is served, or when such registered letter is received.”
Notwithstanding the ingenious reasoning of counsel for appellant to the contrary, there seems to be no room for reasonable controversy but that this case is governed by that provision.
A further reason is given why the complaint is insufficient, that the depth of the hole is not alleged. That is not essential, sufficient being stated to indicate that a jury might be warranted in finding, upon satisfactory proof thereof, that the walk was insufficient. The complaint states that a cross-plank was broken and depressed at the center to the ground. That might well have produced a very dangerous condition of the walk. It fully satisfies the test above suggested. Such a defect has no similarity to such as were involved in Burroughs v. Milwaukee, 110 Wis. 478, 86 N. W. 159, and Kleiner v. Madison, 104 Wis. 339, 80 N. W. 453.
The evidence of the plaintiff was to the effect that she knew of the defect in the sidewalk. That being so, contributory fault on her part in not remembering and avoiding the danger is to be presumed in the absence of satisfactory excuse for forgetting it. That, however, yields easily to evidence showing circumstances reasonably calculated to cause a person circumstanced as respondent was, to momentarily
Error is assigned because a leading question to respondent upon her examination, in chief was allowed, in relation to a matter vital to her right to recover. After she testified in a manner indicating, in one aspect of her evidence, that she was traveling on the sidewalk on the occasion in question regardless of the defect and without any reasonable excuse therefor, she was asked by her counsel: “Did the things you had in your arms, as you have described them, have any effect upon your attention ?” Against objection by appellant’s counsel she was permitted to answer. Error was committed in that. The trial court has large discretionary authority as regards leading questions, but should not allow such questions on the examination in chief of a party, as regards one of the matters essential to his right to recover or his defense, there being no circumstance indicating that the truth of the matter, as understood by the witness, cannot be discovered without departing from the usual method of examination. In the examination of a party or an interested witness, leading
Questions were permitted as to a general defective condition of the walk in the vicinity of the place where the accident occurred. Upon what theory, we are unable to discover. As counsel for appellant contend, such evidence is not permissible in such a case except on the question of notice, and when the specific defect is of such a character that the general condition of the walk would naturally draw attention to the precise defect complained of. Olson v. Luck, 103 Wis. 33, 79 N. W. 29; Conrad v. Ellington, 104 Wis. 367, 80 N. W. 456; Shafer v. Eau Claire, 105 Wis. 239, 243, 81 N. W. 409; Shaw v. Sun Prairie, 74 Wis. 105, 42 N. W. 271; Barrett v. Hammond, 87 Wis. 658, 58 N. W. 1053; Viellesse v. Green Bay, 110 Wis. 160, 85 N. W. 665. Here the unsafe condition of the walk causing the injury had no relation whatever to a general defective condition thereof. It was caused by the breaking down of a strong plank,- — one of such strength that it could not reasonably have occurred by any -ordinary use of the walk. The plank was twelve inches wide and reasonably sound. To break it required some such occurrence as the one claimed in the complaint, but as regards which-no evidence was given upon the trial. How the break -occurred was not shown. There was no evidence of actual notice to the appellant of the defective condition of the walk, so respondent’s whole reliance in respect thereto was proof of circumstances showing that appellant, by the exercise of ordinary care in respect to the walk, could have
A question was allowed to a physician, called to give opinion evidence, as to what caused a particular diseased condition of respondent which' he testified she was suffering-from, basing such opinion upon the assumption that she had testified truthfully, and -what he had seen of her from time to time, including that discovered upon his examination of her person as her physician. In treating this question, we assume that the witness had testified to the facts which had come to his knowledge in the manner indicated. The question was objected to as incompetent. Why was not stated, but probably it was because it contemplated an answer as to-whether the injury caused the diseased condition of respondent claimed to exist. That was one of the vital questions in the case for the jury to pass upon. It is not controverted but that it was permissible for the expert to give opinion evidence as regards whether such condition was caused by violence of some kind applied to respondent’s person, or by some-other immediate producing cause not.going to the circumstance which set such cause in motion. The books are full of instances of opinion evidence of that character. Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674; Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975; Turner v. Newburgh, 109 N. Y. 637, 16 N. E. 344, McKeon v. C., M. & St. P. R. Co. 94 Wis. 477, 69 N. W. 175; Lawson, Expert & Opinion Ev. 126. Whether an injury of the kind in question is sufficient-to produce the particular effects alleged to have been caused thereby is a proper subject for expert evidence. Smalley v. Appleton, 75 Wis. 18, 43 N. W. 826; Block v. Milwaukee St. R. Co. 89 Wis. 371, 61 N. W. 1101; Werner v. C. & N. W. R. Co. 105 Wis. 300, 81 N. W. 416. For the purpose-
In Maitland v. Gilbert P. Co. and Daly v. Milwaukee, supra, it was said, in effect, that so long as the opinion of the expert is based upon undisputed facts or an assumed state of facts warranted by -the evidence in some aspect thereof,
In attempting to harmonize tbe adjudications on tbe subject found in tbe books, one soon discovers that courts have -applied tbe principles stated so variously that tbe function ■of expert testimony and that of tbe jury many times appear to so blend that tbe best experts in tbe science of tbe law veannot discover where the one ends and tbe other begins. It
However, here the question did not necessarily call for any further answer than the witness’s opinion as to the immediate-producing cause of respondent’s diseased condition, as to whether it was by physical violence or other means, and upon an assumed state of facts warranted in one aspect of the evidence, and the physical examination made by the expert. The objection was general. That did not reach the defect,, if there were one, in that the question was not sufficiently restricted to prevent the witness, in answering it, from going-outside the field of scientific knowledge. The question, therefore, must be regarded as having been unobjectionable. It was really the answer of the witness which was objectionable,.
Complaint is made because the court did not confine each -question of the special verdict to a single material controverted fact. If counsel were right as to that, in view of all that has been written here in recent years to improve the practice as to such verdicts and give litigants the full benefits that were designed to be afforded by the special verdict statute, it would constitute serious error; but we cannot agree with counsel that the third question, to which our attention is particularly called, is multifarious. The language thereof is this:
“If you answer the second question ‘Yes,’ had such defective and unsafe condition of the sidewalk existed for such 'length of time before the accident and injury to the plaintiff as to have made it the duty of the proper city authorities, in -charge of its streets and sidewalks, in the exercise of reasonable care and diligence, to have known of and repaired the -same before the accident ?”
Counsel says that covers the questions of time, discovery, :and repair. But there were no such three questions, properly speaking, at issue upon the pleadings. Counsel mistakes the minor parts of one issuable fact for several such facts. That method of treating pleadings in framing a special verdict would go a great way toward re-establishing the mischiefs once existing to a great extent, by shaping the ques-
Complaint is made because the court refused to instruct the jury, at the request of appellant’s counsel, as regards the question on the subject of whether respondent was guilty of a want of ordinary care contributing to the injury she received, that if she was guilty of a slight failure to exercise
The court was asked to instruct the jury in regard to the question respecting whether respondent exercised due cai-e on the occasion in question, — that since she knew of the defect-in the walk it was her duty to use greater care than she would have been required to use to come up to the standard of ordinary care in the absence of such knowledge. That is a correct principle of law. Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087; Devine v. Fond du Lac, 113 Wis. 61, 88 N. W. 913; Seaver v. Union, 113 Wis. 330, 89 N. W. 163. It is an important principle in such a situation as that presented by the evidence in this case. It was, in one aspect of the evidence, vital to the defense. Appellant had a right to have such principle in some appropriate way given to the jury. The language chosen therefor by appellant’s counsel does not appear to be subject to criticism. Error was committed, in refusing to give the instruction.
Complaint is made because the court did not confine the instructions to an explanation of the questions, one by one, so as to enable the jury to understand the same and intelligently make answers thereto; that it instructed the jury quite fully in regard to the law applicable to the ultimate facts, contrary to the repeated rulings of this court on the subject. Counsel’s criticism upon the learned court’s instructions to the jury seems to be well founded. That method of instruct
Some complaint is made respecting the conduct of respondent’s counsel upon the trial, in that in addressing the jury they stated what would be the effect of certain answers to the special questions. The objection of appellant’s counsel to such conduct seems to have been sustained. We cannot discover any prejudicial error in what occurred in respect thereto.
Further complaint is made because of the. size of the ver*
By the Gourt. — The judgment is reversed, and the cause remanded for a new trial.