142 Wis. 238 | Wis. | 1910
The appellant contends (1) that the plaintiff was guilty of contributory negligence; (2) that the town’ was not guilty of negligence; (3) that the fifth question in the special verdict was double; (4) that certain questions requested by the defendant should have been submitted to-the jury; and (5) that the court erred.in instructing the jury.
The criticisms on the special verdict are not well founded and do not call for any discussion. The jury was warranted by the evidence in finding that the plaintiff was not guilty of contributory negligence. The third and fifth errors above referred to raise substantial questions that merit more lengthy consideration.
It is urged that the town was not liable because it did nofr have actual knowledge of the defect and because the proof' failed to show that it existed for such a length of time that the town officers in the exercise of ordinary care should have-discovered and remedied the same. There is no evidence-in the case tending to show actual notice. There is but one-item of evidence which tends to show constructive notice.. That was given by the witness Allen, and is as follows:
“The plank upon which Mrs. Baether stepped was entirely loose and separate from the sidewalk at the time of the-accident; it hadn’t been nailed down. The sidewalk had been in that condition ever since the time prior to the commencement of the excavation of the bank cellar.”
Error is alleged because the court instructed the jury that “when it is necessary in building to disturb the walk, the supervisors may reasonably permit the lotowner to take up the sidewalk or incumber it within a reasonable limit and .with due caution for the safety of travelers.” It is not claimed that this instruction is not a correct statement of the law in the abstract. It is criticised because there was no testimony in the ease to which the instruction was applicable. We are unable to see how the appellant was prejudiced in
Error is also assigned because the court charged the jury that the lotowners were not responsible for any negligence or default on the part of the building contractors in reference to this sidewalk The accuracy of this charge, as applied to the defendant Babler, is attacked on the ground that the removal of the sidewalk was not merely collateral to the work contracted to be done, but that the performance of the contract necessitated its removal, and therefore he could not escape responsibility for the negligence of his contractor under the doctrine of Hundhausen v. Bond, 36 Wis. 29, 40; Hackett v. W. U. Tel. Co. 80 Wis. 187, 193, 49 N. W. 822; and Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58. There arq several answers to this contention. In the first place the evidence does not show that there was any necessity for the contractor to remove or interfere with any more of the walk than had been removed by Babler himself when he was doing the work of excavating. In the next place there is nothing more than mere conjecture to support the view that Babler’s contractor or his employees interfered with the walk or loosened the plank in question. Lastly, the jury found that the plank was loose a sufficient length of time so that the town should have discovered the defect and remedied it There is not a scintilla of evidence to support this finding, except that heretofore quoted, and we must assume that the verdict is based thereon.. That testimony showed that the plank was loose before the excavation was begun, and other evidence showed that the contractors did not begin work until the excavation was about completed. In view of the verdict of the jury this instruction became harmless, even if it were not correct, unless we assume that, had the
By the Court. — Judgment affirmed.