84 Wis. 226 | Wis. | 1893
I. The first error assigned for reversal of the judgment is the refusal of the court to order Mrs. Tate to be made a defendant to the action. If she is primarily liable for the consequences of a defective sidewalk in front of her lots, she should be a party. She is so liable under ch. 471, Laws of 1889, if it was her duty to keep such sidewalk in repair. S. & B. Ann. Stats, secs. 13395, 1339c.
An ordinance of the defendant city, adopted in 1880, was read in evidence, which charges all owners of lots in the city with the duty of keeping the sidewalk in front of their respective lots in repair. If this is a valid ordinance, Mrs. Tate is primarily liable for the injuries complained of, and should be a party to this action. Is the ordinance valid? If it is so, the authority to enact it must be found in the provisions of the city charter, for we are referred to no other statute imposing such liability. The city charter is ch. 148, Laws of 1873. We find in that instrument authority conferred upon, the‘common council, on the application of the owners of. two thirds of the lots on any street or part of a street, or on one side of any block, to levy and collect a special tax on the owners of the lots on such street or part of street, according- to their respective parts, for the purpose of making a sidewalk along the same, or grading, paving, and improving’ the street along the same. Charter, subch. 1, sec. 19, subd. 19 (Laws of 1873, p. 199). The next section provides that, -when such special tax is thus levied, notices therein prescribed shall be given by the street commissioner, fixing a time when persons charged with such taxes may pay the same in labor, materials, or money. The act provides further that “the persons charged with such tax may, within such time and at such
It is immaterial that the city ordinance of 1880, by which it was attempted to place such obligation upon the lot-owners, has been acquiesced in by all parties since its adoption. The charter fails to confer authority upon the common council to impose such burden upon lot-owners, and no mere acquiescence, no matter how long continued, can dperate to confer an authority the exercise of which
We conclude that the ordinance under consideration is invalid; that Mrs. Tate was under no legal obligation to repair the sidewalk in question; and hence that the court properly refused to compel the plaintiff to make her a party to the action.
II. The next error assigned is that there is no evidence to support the finding that the city had either actual or constructive notice of the defect in the sidewalk a sufficient time before the plaintiff was injured to have repaired the same, and hence that the question of such notice should not have been submitted to the jury.
In addition to the admission in the answer that the sidewalk was out of repair (which may fairly be implied from the averment that the street commissioner, shortly before plaintiff was injured, notified Mrs. Tate to repair the same), the proofs show quite satisfactorily, if not conclusively, that the sidewalk' in question was out of repair in the spring of 18S9; also that after Onstine repaired the walk by direction of the street commissioner, the same was apparently in good condition and reasonably safe for the public use. At least it so appeared to persons passing over the walk, because the alleged defect could not be seen by them. The position of the city is that the defect was a hidden or latent one, and that the city cannot be charged with mere constructive notice of its existence, but must have actual notice thereof before liability attaches for injuries caused by it. Counsel for the city proposed an instruction to the jury covering this view of the case, but the court declined to give it. This instruction probably contains a correct statement of the law in a case to which it is applicable. The question arises, therefore, whether the city may successfully assert that, as to it, the defect was latent.
As already observed, there is abundant testimony tending to show that the walk in question was out of repair in the spring of 1889, and the jury were justified in finding on this testimony that, in the exercise of reasonable diligence, the city authorities should have discovered the defects and removed them. The city having been held chargeable at least with constructive notice that the walk
The alleged errors based upon the theory that plaintiff was injured because of a latent defect in the walk, of which the city had no actual notice, are not well assigned.
III. The only remaining assignment of error relied upon as ground for a reversal of the judgment arises upon the refusal of the court to give the jury an instruction on the subject of damages, proposed on b'ehalf of the city. The testimony tended to show that plaintiff was in somewhat feeble health, and that he manifested a tendency to pulmonary disease, which was hereditary in his family. The instruction thus proposed is as follows: “ If the finding of the jury makes it necessary to estimate any amount of damages in favor of the plaintiff by reason of injuries received from a fall on the sidewalk, they will carefully exclude from estimating such amount upon any disability arising from sickness or ill health caused by, or reasonably attributable to, any predisposition of the plaintiff to disease or over-exertion on his part, if you find that such predisposition existed or that the plaintiff had theretofore over-exerted himself; and the same rule must be observed as to any disability arising from any predisposition of the plaintiff to disease or disability arising from the loss of a leg.”
We are not quite sure of the scope and meaning of the proposed instruction, A man may belong to a family many members of which have died of pulmonary disease. He may show in his person and condition the premonitory symptoms of the disease to an extent that competent physicians might say he was liable to die of it in a few years,
We find no error disclosed in the record.
By the Oo'wrt. — The judgment of the circuit court is affirmed.