89 Wis. 31 | Wis. | 1894
The question is whether the undertaking is. ■ a substantial compliance with the provisions of the charter.
But the undertaking, after reciting that the appellant has appealed to the circuit court of Eau Claire county, has this condition: that the appellant shall and will faithfully prosecute her appeal “ in saicl circuit court aforesaid.” If these
But the charter prescribes that the instrument of security shall be “ a bond.” There must be a substantial compliance with this provision. Doubtless, if the undertaking were not technically a bond, the fact that it affords the indemnity intended would prove it to be a substantial compliance. Wilson v. Morrell, 5 Wash. 654. But the undertaking is a species of bond. No certain form is necessary to constitute a bond. It has only a few requisites. It must be in writing; it must name an obligee; it must be sealed and delivered. . The plaintiff’s undertaking has all the requisites of a bond. It is technically a bond. 2 Am. & Eng. Ency. of Law, 449; Prof. T. W. Dwight, art. BoNd, Johns. Ency.
The remaining errors claimed by the defendant are: (2) Denying defendant’s motion for a nonsuit; (3) errors in
The evidence on the part of the plaintiff tended to prove that at the place of the accident was a ridge of snow and ice along the track of the travel on the sidewalk, caused by the travel over the snow which had been allowed to remain and accumulate there; that such ridge was uneven and slippery; that besid® ,and near the ridge was a hole in the plank of the sidewalk; that at the time of the accident the plaintiff’s attention was momentarily diverted; that she slipped, her foot went through the hole, and was held there until she fell in such a way as to break her ankle; and that this hole had been there from the previous summer. The evidence tended to establish all the facts necessary to entitle the plaintiff to recover. It was the undoubted province of the jury to determine whether it did establish such facts. This court has held, repeatedly, and recently in Koch v. Ashland, 88 Wis. 603, that such an accumulation of snow and ice upon a sidewalk may constitute a defect for which the city may be liable, while such a hole in a sidewalk may unquestionably be such a defect. The momentary diversion of the plaintiff’s attention could not be contributory negligence as matter of law. The case was not so clear on either branch, upon the evidence, as to call upon the court to withdraw it from the jury. These vrere questions peculiarly within the province of the jury. It was not error to deny the motion for a nonsuit. The defendant offered no evidence. The case was submitted to the juryfor a special verdict. The jury found specially that the hole in the sidewalk was a defect, and caused the accident; that the defect had existed for so long a time that the defendant should have known of and repaired it; and that no negligence on the part of the plaintiff contributed to produce the accident. It cannot be held that there was no evidence to support the verdict upon either point. On the contrary, it was fully sufficient on each point.
Tbe court also instructed: “ If you find that she would not have fallen, while carefully walking upon this ice, unless her feet bad gone into some bole or defect in tbe sidewalk, then you will answer that it was caused by her slipping on tbe ice, primarily, and a foot slipping upon tbe ice into a depression in tbe sidewalk, if tbe evidence so satisfies you.” And so tbe jury found. Tbe objection made to this instruction, and to tbe verdict upon this question, is that there is no direct or positive evidence that tbe plaintiff’s foot went into a bole in tbe sidewalk at all. No one saw her foot in sucb a place, and plaintiff could not testify positively just bow her ankle came to be broken. Tbe bole was there; tbe foot was somehow held; tbe ankle was broken. It would be a legitimate inference, and not “ mere conjecture,” for tbe jury to find that tbe foot went into tbe bole and was held there, and that that was tbe manner of tbe accident.
Tbe defect which tbe jury found to be tbe cause of tbe accident bad been in tbe sidewalk since tbe previous summer. It was not error for tbe court to instruct tbe jury that that was sufficient time in which tbe city should have learned of and repaired tbe defect.
By the Qowt.— The judgment of the circuit court is affirmed.