The claim made by the defendant the Builders' Exchmige, the owner of the building, that Heff and the Bayleys were independent contractors, seems to us well founded. It is true that in their contracts it is provided that the work is to be performed under the direction and to the satisfaction of the architects, acting as agents of the owner, but it is entirely certain from the whole contract that this is simply a reservation of the right of inspection. It is not a reservation of power to control the manner of the work, to change materials to be used, or prescribe ways and methods in which the work is to be carried out. The contractors have agreed to build the building according to fixed plans and specifications, and of certain materials. They can do the work in their own manner and with their own machinery, providing they comply with their contract. The architect can only require that the building be such as the contract demands. He has no control for any other purpose. We do not regard this reservation of the right of inspection of the work as changing the character of the contract. Hugh-banks v. Boston Inv. Co. (Iowa), 60 M. W. Rep. 640. It is evident that- the falling of the brick was collateral to the
In the present case, however, the plaintiff claims another distinct ground of liability on the part of the owner of the building, as well as the contractors, arising out of the failure to make a covered passageway along the Fifth street front of the building, thus violating the city ordinance referred to in the statement of .facts. This ordinance was passed by the common council before the erection of this building was begun, and provides in substance that •“ any owner or contractor who shall hereafter build or cause to> be built” any building abutting on a public sidewalk shall, after the completion of the first story, cause a roofed passageway to be built in front of the building, upon the sidewalk, under pain of a certain fine or imprisonment. The power to pass this ordinance seems clear. The charter gives the common council power “to control and regulate the construction of buildings,” “to prevent and prohibit the erection or maintenance of any insecure or unsafe buildings,” “ to control and regulate streets,” “ to prevent the encumbering,of streets and alleys in any manner and protect the same from any encroachment or injury,” and “ to regulate the manner of using the streets and pavements.” Laws of 1874, ch. 184, subch. 4, sec. 3. An ordinance passed by the common council, which is within its power to pass and is reasonable, has the effect of law within the corporate limits. This ordinance, we think, is entirely reasonable, and it was therefore law to all intents and purposes, and it required both the owner and contractor to construct a covered way over the sidewalk where this accident happened. Had
These considerations demonstrate that there was no error in overruling the motions for nonsuit and the motions to direct verdicts made by the several defendants. A new trial of the case will be necessary, however, because of certain errors, which we will briefly state:
1. The jury were instructed on the subject of damages that the plaintiff would be entitled to compensation for the pain and suffering which she had endured, also for the pain which she may be likely or that there is a reasonableprobabil* ity that she will endure in the future. This was error. The plaintiff is only entitled to recover for such future pain as the evidence shows she is reasonably certain to endure. Block v. Milwaukee St. R. Co. 89 Wis. 371.
2. The jury were also instructed as follows: “I instruct you, gentlemen, that a person is not guilty of contributory negligence in a case where that person receives an injury, being in a place of danger, because that person does not exercise his best judgment in avoiding injury and escaping from danger -when warned. So, if the plaintiff, at the time the brick was seen to be falling from the top of that building, was warned and told to escape,— told to get away from the falling brick,— she is not chargeable with negligence because she did not use the best means of escaping from receiving an injury at that time, because, being in a place of danger, she is not chargeable with negligence if she did not use the best means of escaping.” This was misleading in the present case, because no facts in evidence warrant it. The plaintiff denies having received any warning, and the evidence of the defendants’ witnesses who testified to having shouted at the plaintiff when the brick was falling shows affirmatively that the plaintiff did not understand or know
3. The defendants JBayley were not parties to the suit as ■originally brought, and before they were made parties the ■deposition of one Kneer was taken. Upon the argument of the case the attorney for the defendant Neff was allowed, against objection, to read a part of this deposition to the jury, against the Bayleys, in reply to the argument of Mr. Sutherland on behalf of the Bayleys. This was error. It could not be used as against the Bayleys, because they were not parties to the action when it was taken.
4. The charge was erroneous, also, when treating of positive and negative testimony. The trial judge practically told the jury that negative testimony was confined to that of a witness who, though present at a transaction, says that he did not see or did not hear. This is too limited a rule. Testimony which is positive in form may amount merely to negative testimony. Ralph v. C. & N. W. R. Co. 32 Wis. 177; Draper v. Baker, 61 Wis. 450. It is erroneous, also, to say that the positive testimony of a witness to the existence of a certain thing, and the testimony of another witness that such a thing did not exist, are equally credible. This instruction ignores every well-settled principle which is to be applied in determining the credibility of witnesses, and lays down the rule that one witness will counterbalance another. Draper v. Baker, supra.
Numerous other questions were presented and argued, but we think the' general principles laid down in this opinion so far simplify the questions presented that upon a new trial many of these questions will not again arise, and we do not deem it our duty to consider them in this opinion.
By the Oowrt.— Judgment reversed upon all the appeals, ■and action remanded for a new trial.