147 Wis. 300 | Wis. | 1911
The defendant claims (1) that tbe notice of injury was pot served upon tbe proper officer of tbe city;.
It appears that the notice of injury was served upon one G. E. McEntee. Plaintiff claims that at the time of the service of notice upon him' he was the sidewalk superintendent of the city, while the defendant asserts there was no such officer. The defendant city was organized under a special charter (Laws of 1883, ch. 152), and sec. 66 of subch. 18 thereof, added in 1889 (Laws of 1889, ch. 435, sec. 4), provides that no action shall lie against the city on account of an injury or damage to any person or property occurring by reason .of the insufficiency or want of repair of any sidewalk in said city unless a notice in writing shall have first been given to the street commissioner or sidewalk superintendent of the city, or an alderman of the ward within which the injury or damage shall have occurred, within thirty days from the time such injury or damage shall have happened. In 1904, pursuant to the provisions of sec. .926, Stats. (1898), the city of Fond du Lac adopted secs. 925 — 23 to 925 — 30, inclusive, except see. 925 — 29, secs. 925 — 78 to 925 — 94, inclusive, and secs.-925 — 201 to 925 — 207, inclusive, in lieu of similar provisions of its spécial charter. But in Block v. Fond du Lac, 141 Wis. 85, 123 N. W. 654, it was held that notwithstanding the adoption of secs. 925 — 201 to 925 — 207, relating to the construction and repair of sidewalks, sec. 66., subch. 18, remained in force. Hence if Mr. McEntee was not sidewalk superintendent of the city within the meaning of sec. 66, there was no proper service upon the city.
The result of the adoption of the sections above referred to was to place in the board of public works many of the most important duties which under the special charter had devolved upon the sidewalk superintendent. Nevertheless the city, in April, 1908, adopted a resolution that the board of public works be authorized to employ a sidewalk inspector at
It is claimed that the plaintiff had knowledge of the defective condition of the walk prior to the injury and that no reasonable excuse was shown for his failure to remember that fact and properly protect himself, and that he was therefore guilty of contributory negligence under the decisions in Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087, and
“A traveler, knowing of the existence of a defect in a highway, may temporarily forget the existence of such defect, and yet be in the exercise of ordinary care; that it will he presumed, in the absence of evidence to the contrary, that he remembered the defect, and was negligent in falling into it, but that this presumption will give way to explanatory circumstances appearing in the evidence, showing a reasonable excuse for forgetfulness; and that, when such circumstances are shown, the question is one for the jury.”
The mere fact that plaintiff knew of the defect in the sidewalk and still used it did not conclusively establish contributory negligence. Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40; Salzer v. Milwaukee, 97 Wis. 471, 73 N. W. 20; Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322; Wolf v. C. & N. W. R. Co. 131 Wis. 335, 111 N. W. 514. In the instant case plaintiff testified that he knew of loose boards in the walk, but that he did not have that fact in mind when he was walking along at the time he was injured. He offers no affirmative oral excuse or explanation why he did not. The question therefore is, Are there any explanatory circumstances appearing in the evidence showing a reasonable excuse for forgetfulness? Plaintiff was a carpenter by trade, seventy-one years old. He was going home with his daughter after a day’s work, carrying his tools in his hand. He does not recollect that they were conversing at the time. She, however, testifies that they were. But even if they were not, we think it was a question for the jury to determine whether or not under the circumstances of this case he was guilty of negligence in forgetting the existence of loose boards in the walk, and that their finding that he was not cannot be disturbed. He was in company with his daughter, carrying tools in his hands; presumably his attention was somewhat engrossed by what he was doing and by the fact of companionship ; and if they were conversing, as the daughter testifies,
Upon the question of contributory negligence the court instructed the jury that the burden of proof was upon the defendant. It defined ordinary care and then said:
“If the plaintiff had knowledge of the existence of the defect claimed previous to the accident, such circumstance requires some evidence, direct or circumstantial, reasonably sufficient to overcome the presumption of negligence raised by such knowledge, either by showing that plaintiff was proceeding upon the walk paying attention to the necessity of avoiding the danger, or that he forgot the existence of it and that his forgetfulness under the circumstances was consistent with ordinary care.”
Defendant claims that this instruction confused the jury as to the burden of proof; that they might infer from it that
Plaintiff was awarded $900 damages. It is claimed tbe award is excessive. At tbe time of bis injury be was seventy-one years old and earning $2.50 per day. There was evidence tending to sbow tbat be bad a bole cut through bis face into bis mouth; two teeth destroyed and two others injured; tbat be was confined to bis bed two-weeks and to bis bouse two months; and tbat bis back received sucb an injury tbat there was rigidity and pain in it over a year after tbe accident. Tbe amount of damages awarded cannot be held excessive.
By the Gourt. — Judgment affirmed.