68 Wis. 678 | Wis. | 1887
This is an action to recover damages of the city for an injury to the respondent, caused by falling upon the sidewalk of one of the principal streets of said city. The respondent claims that she fell because her foot became
The learned counsel for the appellant has prepared a very full and fair statement of the whole evidence in the case, and he insists that, upon a fair, consideration of that evidence, this court should hold that the plaintiff has utterly failed to make out a case against the city. He makes his points — (1) that there was not a defect in the walk such as should charge the city with negligence; and (2) that the evidence fails to show that the city had notice of the alleged defect before the accident happened.
This case was in this court upon a former appeal (63 ~Wis. 652), and this court then held that there was sufficient evidence then produced to carry the case to the jury both upon the question of the defect in the walk and notice thereof to the city. By an examination of the evidence as presented by the record on the former appeal, it will be seen that it certainly did not make any stronger, and, in some respects, not as strong a case in favor of the plaintiff upon these questions as the evidence in the present case.
The evidence in this case shows that the sidewalk was made of two-inch planks laid lengthwise with the walk; that, at the place where the plaintiff fell, the edge of one of the planks had rotted away for a space of from two and a half to three inches in width and of a depth of an inch to
The evidence upon the question of notice to the city was clearly sufficient to send that question to the jury also.
The jury having found that the sidewalk was defective, and that the city had notice of the defect, or that the defect had existed for such a length of time that it ought to have had knowledge of it, the plaintiff has clearly made out a case against the city, and it was not error for the circuit court either to refuse to nonsuit the plaintiff or to set aside
The case was fairly submitted to the jury under the instructions of the court, to which no exceptions were taken by the appellant, and by which all the material issues in the case were clearly presented to the jury for their consideration. At the request of the defendant, the court instructed the jury as follows: “Unless the sidewalk in question was defective to that degree that it was thereby rendered unsafe to those passing thereon, they using due and ordinary diligence and care in so doing, the city is not liable.” “Unless the defect was such that ordinary diligence on the part of the city officers whose duty it was to keep the walk in repair would have discovered it, the city is not liable.” These two material propositions were enlarged upon by the learned judge in his instructions to the jury, so that it' was very clear that all the rights of the city were fairly protected by the judge in his charge, and they were apparently entirely satisfactory to the learned counsel for the city.
No complaint is made by the learned counsel, in his brief or in his argument before this court, that there was any error in refusing to give an instruction asked by him and which the court refused to give. And it is evident that the special instruction refused was, so far as it was proper to give the same, given in the general charge.
The only questions raised by the learned counsel for the appellant were questions of fact arising upon the evidence,
By the Court.— The judgment of the circuit court is affirmed.