Raymond v. Keseberg, 91 Wis. 191

Raymond v. Keseberg

91 Wis. 191 | Wis. | 1895

MaRshall, J.

.The jury must have understood from the instructions given In respect to the second and third ques*194tions that unless a. light was in position, at the instant of the accident, so placed and of such a nature as to furnish warning to travelers of the presence of the mound of earth, if the street .otherwise would have been defective because of the obstruction, it was their duty to find that it was defective in fact at the time of such accident and through want of ordinary care on the part of defendant Keseberg. From this the jury may well have found from .th e evidence that Mrs. Keseberg, on the evening in question, placed a suitable light in a suitable manner on the mound of earth to warn travelers of the danger thereby caused, and that it was in its .proper position and effectual for that purpose shortly before the injury, but that it was not present at the instant of .the accident; and, though its absence at such instant was without want of ordinary care on the part of defendants or either of them, they are nevertheless liable for plaintiff’s injury if there was no want of ordinary care on Ms part which contributed to produce it. Such is not the law, but the true rule is that if a person, whose duty it is to so guard an obstruction lawfully placed in a public street as to .prevent danger to persons using such street for travel in the exercise of ordinary care, performs his duty in that regard by the use of a proper light or .otherwise, and the guard, after being properly placed, is removed' without fault on such person’s part,.and a traveler is thereby injured before sufficient time has elapsed for such person, in' the exercise of ordinary care, to discover such removal and to remedy it, then he is not liable. The injury in such case is damnum absque injuria. Testing the learned judge’s charge by the foregoing, the error committed, and the liability that defendants were prejudiced thereby, are apparent. The correctness of the rule stated is too well settled to require argument here to sustain it. Klatt v. Milwaukee, 53. Wis. 196; Aylesworth v. C., R. I. & P. R. Co. 30 Iowa, 459; Mullen v. Rutland, 55 Vt. 77; Campbell v. Fair Haven, 54 Vt. 336; Prindle v. Fletcher, 39 Vt. 255; Weirs v. Jones Co., *19580 Iowa, 351. In the last case cited the court said, in effect: “ The rule adopted by the court below made defendant liable for the continued maintenance of the barriers, even though they were removed without fault on its part and so short a time before the accident as to prevent its acquiring knowledge of the fact. This was erroneous. The defendant was required to use the care which might be expected of a reasonably prudent and diligent person under similar circumstances in the management of his own affairs.”

The instruction given by the learned circuit judge relating to the amount of damages recoverable for future disability, to the effect that he is entitled to recover for bodily pain and suffering which he may ham to endwre- in the future, was cleanly erroneous. White v. Milwaukee C. R. Co. 61 Wis. 536; Hardyo. Milwaukee St. R. Co. 89.Wis. 187; Block v. Milwaukee St. R. Co. 89 Wis. 371. It hás been iterated and reiterated by this court that the true rule is that the recovery for future disability must be limited to such as is reasonably certain to result from the injury complained of.

We think the learned circuit judge also erred in respect to the effect of ch. 471, Laws of 1889, on ch. 454, Laws of 1885. The latter act is not repealed in any manner by the former. The action against the city is purely statutory, and as judgment, if the plaintiff recovers, must go against all the defendants and thére can be but one judgment, we hold, construing the two acts together, that if the city is made a party defendant, either alone or joined with the de-. fendant primarily liable, the recovery must be limited to $5,000.

There are several other errors' assigned in the record that we do not deem it necessary to consider. For the errors already referred to the judgment of the circuit court must be reversed and a new trial granted.

By the Court.— The judgment of the circuit court, is reversed, and the cause remanded for a new trial.