174 Wis. 480 | Wis. | 1921
The following opinion was filed May 3, 1921:
The undisputed facts show that the accident in question happened on Elizabeth street just easterly of a point where Salem avenue joins Elizabeth street. Elizabeth street runs east and west and there is upon it a single track of street railway. Salem avenue extends southwesterly beyond the corporate limits of the defendant city. At the point near the juncture of Salem avenue and Elizabeth street Kappus Brothers, at the time of the injuries, had excavated on their, property on the south side of and fronting on Elizabeth street for a foundation for a building. One Sullivan had obtained a permit from the defendant city to remove the brick pavement on Elizabeth street a short distance east of the point where the easterly line of Salem avenue intersects the south line of Elizabeth street, for the purpose of making a sewer connection for. the proposed new building. Sullivan removed the brick pavement on or about April 10th. The excavation was two feet wide and abou.t ten feet in length, running north and south from a point about four feet north of the south curb of Elizabeth street to within one and one-half or two feet of the south rail of the railway track. The sewer, connection was made, the
One of the errors complained of is that the court instructed the jury to the effect that the mere fact that Erickson had been drinking previous to the accident or that he was under the influence of intoxicants at the time of the accident, if such be the facts, does not necessarily and of itself command the conclusion that he was not exercising such degree of care as is ordinarily exercised by the great majority of mankind not under the influence of intoxicat
We shall discuss but one of the remaining errors assigned. The court submitted no question to the jury and was requested to submit- none as to whether or not the defendant had notice of the defect which caused the injury and had a reasonable opportunity for repairing the same.
There having been no request for the submission of that issue to the jury,, we must assume that in granting judgment the court found that issue in favor of the plaintiffs. Sec. 2858m, Stats. Such presumed finding, however, must find support in the evidence and will only be made where there is evidence to sustain it. Kraczek v. Falk Co. 142 Wis. 570, 126 N. W. 30; Gegare v. Fox River L. & L. Co. 152 Wis. 548, 140 N. W. 305; Korrer v. Madden, 152 Wis. 646, 140 N. W. 325. A careful examination of the record convinces us that there is no evidence to sustain such a finding. The evidence as to the nature of the defect relates very largely to the time of or after the accident or before the repair was made on Thursday. One witness testifies that he observed the same at about 5 o’clock on Saturday afternoon and remarked that it was a bad hole to leave over Sunday. The case is entirely barren of evidence that the city had any notice of the condition of the excavation after that time and before the happening of the accident, and it must be said as a matter of law that the existence of the defect for a few hours would not charge the city with
This issue was apparently not litigated upon the trial. Ordinarily we should reverse the judgment with directions to dismiss the complaint. But the issue not having been litigated and the attention of the court and parties not having been directed thereto, we are of the opinion that in the interest of the proper administration of justice there should be a new trial.
By the Court. — Judgment reversed, and cause remanded for. a new trial.
A motion for a rehearing was denied, with $25 hosts, on July 13, 1921.