26 Wis. 56 | Wis. | 1870
This was an action against the city to recover damages for an injury occasioned by an alleged defect in a sidewalk. A reversal is urged principally upon the ground of insufficient proof of knowledge of the defect on the part of the city authorities. And it is claimed that the case is, in that respect, like that of Goodnough v. Oshkosh, 24 Wis. 549. But they are materially different. In that case the plank had become loosened at the place where the accident occurred, by driving wagons across the walk upon an adjoining lot. It having been replaced, and the general condition of the walk being good, there was nothing to call the attention of the authorities, or of any passer-by to the defect, unless some one happened to so step on the loose boards as to move them from their place. But here the whole sidewalk was in an unsound and dangerous condition, which was well
Certainly a more dangerous condition for a sidewalk could not well be imagined. A broken plank, or one entirely absent, is a defect of such a character as ordinarily attracts the attention of the passer, so that he guards against it. But a walk which presents a delusive appearance of general soundness, but at the same time has loose plank, is like a trap set for travelers. Where several are walking together, without any warning, one finds himself suddenly stumbling against a plank which another has raised before him by stepping on the end projecting beyond the stringer. There are few who have had much experience in traveling on the “ very old sidewalks ” of negligent cities, who have not been tripped, or seen others tripped in that way, though, as a general rule, the parties are fortunate enough to get off without any very serious injury. But the results in this case, in the Goodnough case, and in others in the reports of other states for injuries happening in precisely the same manner, show that the liability to serious injury from such a walk is always imminent. And a city whose officers know that the general condition of a
The evidence of the defect of the sidewalk, and of the knowledge of it by the proper officers, was ample from the defendant’s witnesses, without referring to those of the plaintiff, to justify the court in overruling the motion for a new trial, so far as these points were concerned.
Nor was there any evidence of negligence, or want of ordinary care, on the part of the plaintiff, to justify either the motion for a nonsuit, the motion for a new trial, or the instructions in which the court was asked to submit the question of the plaintiff’s negligence to the jury. The evidence of the plaintiff, as to the manner in which the injury occurred, showed, affirmatively, that she was in the exercise of ordinary care when the accident happened. She was going along the walk as any person would, and the only thing relied on, upon which to base any claim of negligence, was that she allowed her attention to be attracted for a moment to a horse that was running away down the street. This was entirely natural, and what every one would have done. And no question of negligence ought to be submitted to a jury upon such a circumstance as that.
This view of the evidence upon these two questions of fact, disposes of most of the objections raised by the appellant.
The defendant excepted to the instruction as to the rule of damages. That involved several propositions, a portion of which are not disputed. It told the jury that the plaintiff, if entitled to recover at all, could recover expenses for medical attendance and all loss resulting from the injury up to the time of the trial..
So the appellant claims that there was evidence tending to show that the plaintiff aggravated the injury by her own imprudence and neglect of the directions of the physician, after it occurred, and that the general instruction about damages was erroneous in not alluding to the question raised by this evidence.
But the court properly told the jury that the plaintiff could recover the damages caused by the injury. That would impliedly exclude those caused merely by her own negligence and imprudence after the injury. And if the defendant desired a more specific instruction to that effect, he should have drawn one and asked the court to give it. The charge being correct in itself, so far as it went, cannot be held erroneous by reason of omitting to instruct upon a particular point, which might properly enough have been the subject of an instruction, but in relation to which none was asked.
The damages, though large, were not such as to justify the court in ordering a new trial upon that ground. The plaintiff was an active, energetic busi
By the Court. — The judgment is affirmed.