78 Wis. 644 | Wis. | 1891
This action was commenced by the plaintiff to recover for injuries which she alleges she received by falling through a plank sidewalk on one of the public streets in said city. She also alleges that her fall and injury were the result of a defect in said sidewalk at the place where she was injured, occasioned by the use of a' defective and insufficient piece of plank used by the said city in repairing such sidewalk. The walk upon Avhick she was traveling at the time she was injured, was constructed of plank placed lengthwise the street, upon stringers or supports four feet apart. The planks used were eight inches wide and two inches thick. At the place where the accident happened, one of the planks had decayed at the edge, and the' city au
Upon the argument the learned counsel for the appellant insists that the verdict is wholly unsupported by the evidence ; that the court erred in not nonsuiting the plaintiff upon the motion of the defendant.
The court instructed the jury, upon the question of the duty of the city in repairing its sidewalks, as follows: “ It is the duty of a city to so construct and maintain its sidewalks as to render them reasonably safe and convenient for persons who have occasion to pass along them. The question of whether a particular sidewalk, in regard to the manner of its construction or the manner in which it has been repaired, is defective or not, is a question of fact to be determined by the jury from the evidence. The sidewalk of the defendant city at the place where the accident to the plaintiff happened became out of repair early in July last, by reason of one of the planks becoming rotten on its side, and by direction of the street commissioner of the city it was repaired by cutting out of the defective plank the rotten part and inserting in the gap thus made a piece of pine four
The court, at the request of the defendant, further instructed the jury as follows: “ To render a city liable for a defect in a sidewalk, the defect must be of such a character that the city authorities, by using ordinary care and diligence, could discover it. If you should find from the evidence in the case that the defect was of such a nature that the officials of the city could not have discovered it by using ordinary care and diligence, the defendant is not liable in
No exceptions were taken to any part of the instructions of the court to the jury. It was urged upon the argument that there was no evidence tending to show that the sidewalk was defective at the place where the accident happened. We cannot agree with the learned counsel on this contention. There was evidence that the two by four plank, with which the walk had been repaired a few weeks 'before the accident, broke under the weight of the plaintiff when she stepped on it, while she at the time was passing along in an ordinary walk. It seems to us this fact, standing alone, raises an inference that the repair made with that small plank, four feet long and two inches thick by four inches wide, was a defective repair of the walk at that place, not because the method of making the repair was defective and dangerous, but because the breaking of the small plank under the pressure of the weight of the plaintiff tended strongly to prove that the plank with which the repair was made was a defective one, and, in the absence of proof to the contrary, it is evidence tending to show that such defect in the plank might have been discovered by a man of ordinary skill exercising reasonable care in the selection of the plank for making the repair. Under the evidence it was not for the court to say, as a question of law, that the city and its employees were not guilty of negligence in selecting the plank with which the repair was made. The court properly left that question to the jury, under instructions sufficiently favorable to the defendant. The question whether the city had notice of the defect of the walk before the accident happened, is not in this case. If, as contended by the plaintiff, the defect consisted in repairing the walk with defective materials, then the city is liable for .the acts of its agents and employeés in making such defective and dangerous repair, and is chargeable
It is also urged by the appellant that the court erred in rejecting evidence offered by the defendant, to show that it was a common practice to make repairs of the sidewalks in the way this was repaired. There was no question as to the manner of making the repairs before the jury. The question was whether the repair was made with material which would be reasonably safe when used in making a repair of the walk in the way it was repaired. It seems to us that the offer by the defendant to prove that a good, sound piece of plank, two inches thick, four inches wide, and four feet long, supported at the ends, would bear up the weight of two heavy men placed on the middle of it, was properly rejected. The fact, if proved, would rather tend to prove the contention of the plaintiff that the plank used in the walk was defective than otherwise, and in no way tended to prove that the plank in the walk would bear up that weight.
The offer to prove that the sidewalk was on a public street, and that cows were passing along said street and sometimes passed along the walk, as a ground for an argument that possibly a cow had passed along the walk and broken the plank before the plaintiff stepped on it, was too remote and uncertain a circumstance to be admissible evidence.
The learned counsel alleges as error for which the judgment should be reversed “ that after the jury had retired to consider upon their verdict, and after they had been out some time, the judge called the jury into court, and, in the absence of the counsel for the defendant, made the following oral remarks to the jury.” The learned circuit judge makes the following statement as to what was said and done when the jury came into court: “ The jury retired to deliberate upon their verdict about the middle of the after
The counsel for appellant claims that these remarks to the jury, not being reduced to writing at the time, either by
The case seems to have been fairly tried, and submitted to the jury upon the facts, under a charge which was quite acceptable to the defendant, and, the evidence in the case
By the Court.— Tbe judgment of tbe circuit court is affirmed.