Peake v. City of Superior

106 Wis. 403 | Wis. | 1900

WiNslow, J.

It is entirely plain that the first question of the special verdict covers two controverted issues in the case, viz.: (1) Whether there was a defect in the street; and (2) whether it had existed so long that the city officials should have known and repaired it. ' The question was answered in the negative, but no one can say whether this answer means that there was no defect, or that there was a defect but that it was so recent that the city was not chargeable with notice thereof. This, however, is not the most serious vice in the question. Some of the jury may have been satisfied that there was no defect, and others that there was a defect but that it was so recent as not to charge the city with notice; and, while all would thus agree that the question should be answered in the negative, there would be no agreement upon the facts. This is just the difficulty which the special verdict is intended to obviate. “ Special verdicts are worse than useless if courts do not submit for them single, direct, and plain questions, and insist upon positive, direct, and intelligible answers.” Carroll v. Bohan, 43 Wis. 218. The plaintiff was entitled to have the jury say, in answer to simple and direct questions, (1) whether there was a defect; and (2) whether, if so, there had been negligence in not discovering and repairing it. To combine the two questions in one, so that a negative answer would inform no one what the conclusions of the jury were upon them separately, or, in fact, whether any unanimous conclusion at all was reached upon the separate questions, was, we think, prejudicial error, under the circumstances of this case.

In submitting this question the court recognized its dual character, and charged the jury- first to consider and determine whether or not the street was reasonably safe (i. e. whether there was a defect), and if they found there was a defect, then to determine whether it had existed so long as to give defendant constructive notice of its existence and time to repair it. So far the charge seems unexceptionable. But the court then proceeded to say, in substance, that, if they found both defect and constructive notice, they must go further, and determine whether “ the defect was of such a nature that a man of ordinary care and prudence would reasonably expect might result in an injury to persons using the place with ordinary care.” This involves,confusion in terms, to say the least. A “ defect ” in the street is a lack of reasonable safety. If the street is not reasonably safe, and the city has constructive notice thereof and time to repair, then the city’s negligence is established, and its liability to respond to one injured thereby while exercising ordinary care is certain. But the court, in effect, said that if there was a defect (i. e. lack of reasonable safety), and constructive notice thereof and time to repair, still this was not sufficient, but that, in order to find defendant guilty of negligence, they must go further, and find that the defect was of such a nature that men of ordinary care and prudence would reasonably expect would result in injury to ordinarily careful pedestrians. This test of the character of the street was distinctly repudiated in Draper v. Ironton, 42 Wis. 696; and it was said that the jury should be left to determine, from all the evidence as to its condition, whether the highway was or was not in a reasonably safe condition for travel, and should not have been restricted to the inquiry as to what a certain class of persons might think as to the probability of accidents happening to ordinarily careful travelers. Whatever might be said about the reasonableness of this test, as an original proposition, we see no occasion now tó overrule the Draper Case. Certainly, in the present case, when the court told the jury that after they had found a defect and found constructive notice they must still go further and find an additional fact presumably different from anything they had before found, we think it was misleading and prejudicial.

There was considerable discussion in the briefs in this case as to the question whether the city is under an absolute duty to make and keep the streets in a reasonably safe condition, or is only bound to the exercise of reasonable and ordinary care. It seems to have been thought by counsel that there has been a change in the position of this court upon this subject since the case of Ward v. Jefferson, 24 Wis. 342. That case simply held that, where a highway was defectively constructed by the municipality, the statutory duty never had been performed, and the liability of the municipality for injuries resulting from such defect to travelers exercising ordinary care was absolute. Such a defect being established, the negligence of the town is conclusively proven, and the jury cannot find that ordinary care has been exercised. On the other hand, it was said in that case, in substance, that if the highway was originally constructed with reasonable safety, but afterwards became defective by action of the elements or the act of a third person, and a traveler was injured, thereby, the question whether the municipal officials had notice of tbe defect, or had exercised ordinary and reasonable care and diligence in inspecting the highway and repairing the defect, arises, and must be decided. In other words, the duty to make the street reasonably safe in its original construction is absolute; but the duty to discover and repair defects afterwards occurring, not by acts of the municipality, is.one involving only ordinary and reasonable care and diligence. This latter duty may properly be called the duty to exercise ordinary care, if the term “ ordinary care ” be properly defined. If the question be submitted to the jury in that form, however (namely, in the form of an inquiry whether the municipality has exercised ordinary care in its inspection and repair of streets), it is manifest that some instruction should be given to the jury as to wThat constitutes ordinary care in such a case; otherwise, the question may well be misléading. Highway officials are bound to exercise reasonable vigilance in the care of the streets under their charge, and it is only that degree of care which reasonably vigilant and careful officials would and do exercise under similar circumstances which can properly be called “ ordinary care ” in such a case as the present. With this explanation of the subject, it is not believed that there has been any material divergence in the decisions upon the subject in this court.

Nor the reasons given, there must be a new trial.

By the Oourt.— Judgment reversed, and action remanded for a new trial.