McDonald v. City of Ashland

• Decision Date: 16 December 1890
• Citation: 78 Wis. 251,47 N.W. 434
• Parties: MCDONALD v. CITY OF ASHLAND.
• Court: Wisconsin Supreme Court

78 Wis. 251

47 N.W. 434

MCDONALD

v.CITY OF ASHLAND.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Ashland county.

This is an action to recover damages for personal injuries alleged to have been received by the plaintiff by reason of the insufficient and dangerous condition of one of the public streets in the defendant city. The facts conclusively proved on the trial, and those which the jury were authorized to find from the testimony, are as follows: Second street, in the city of Ashland, extends through the city in an east and west direction. It is several miles in length, and is the principal business thoroughfare in the city. It is improved, and used for general travel for a long distance from the west to where it crosses Stuntz avenue, which is another public street of the city running north and south. Second street is not used for travel with teams east of Stuntz avenue, but there is a sidewalk along the south side of the street from 115 to 120 feet east of the avenue. A portion of this side walk is a bridge across a ravine which seems to have been properly constructed. The bridge was built in 1886 by a citizen who desired to use it, but the town of Ashland, (the city not then having been organized,) by its proper officers, furnished the lumber for it. It was built gratuitously. At the time the plaintiff was injured, and before, a horse-barn and barber-shop stood in the street east of and near the east line of the avenue, but these structures did not encroach upon such sidewalk. Several families resided on Second street east of the bridge, and the members thereof and others were accustomed to use the bridge and sidewalk as a public footway. From the early part of the winter of 1887-88, snow and ice were allowed to accumulate on the bridge until a high ridge of ice was formed in the center, sloping to the sides. Up to the time the plaintiff was injured, the same had not been cleaned. On January 30, 1888, as the plaintiff was carefully passing over the bridge, she slipped and fell, thereby receiving the injuries complained of. Further reference to the testimony, and a statement of the rulings of the court on the trial, which are assigned for error, will be found in the opinion. The trial resulted in a verdict and judgment for the plaintiff for $3,500. A motion on behalf of defendant for a new trial was denied, and judgment entered for plaintiff in accordance with the verdict. The defendant appeals from the judgment.W. F. Shea and E. J. Dockery, for appellant.

Gallagher & McLennon and Tomkins, Merrill & Smith, for respondent.

LYON, J., ( after stating the facts as above.)

I. A notice of the alleged injury, substantially in the form prescribed by statute, (Rev. St. § 1339,¹) signed by the plaintiff and her husband, was given to the city clerk of Ashland within the time prescribed by the statute. Such notice was offered in evidence by the plaintiff, and received, against an objection on behalf of the defendant. Although it does not so appear in the record, it was alleged by counsel for the city, in his argument, that the plaintiff and her husband had previously commenced an action against the city for the same injury, and that such notice was one of the papers in that suit. If such be the fact, it is quite immaterial. The notice is not a proceeding in this or any action, but is an essential preliminary to the commencement of an action for the injury complained of, and is competent evidence in this or any action in which it is necessary to prove the service thereof. The plaintiff having signed the same, the requirement of the statute was complied with, and it is immaterial that her husband also signed it. His signature is mere surplusage.

II. It is contended that the bridge on which plaintiff was injured is not a public highway. The evidence is to the contrary. It shows that the bridge was constantly traveled by pedestrians, that it was constantly used by the families residing east of it and others, and was crossed by 25 or 30 people daily. It appears, further, that the town of Ashland furnished the lumber used in its construction. It was therefore a public way, both by public user and acceptance by the town of the platted street in which it was erected.

III. It is further claimed on behalf of the city that its authorities had no notice of the insufficiency and dangerous condition of the bridge. Indeed, the street commissioner and supervisor...