Barrett v. Hammond

• Decision Date: 01 May 1894
• Citation: 58 N.W. 1053,87 Wis. 654
• Parties: BARRETT v. VILLAGE OF HAMMOND.
• Court: Wisconsin Supreme Court

87 Wis. 654

58 N.W. 1053

BARRETT

v.VILLAGE OF HAMMOND.

Supreme Court of Wisconsin.

May 1, 1894.

Appeal from circuit court, St. Croix county; E. B. Bundy, Judge.

Action by Ann Barrett against the village of Hammond. From a judgment for plaintiff, defendant appeals. Reversed.

This action was commenced August 25, 1891, and the complaint alleges, in effect, that December 24, 1890, the sidewalk on the east side of Main street in the defendant village, at a point about 10 feet north of the northwest corner of a certain building then occupied by John McGovern as a general store, was constructed of stringers laid upon the ground, and plank about 2 inches thick, 8 inches wide, and 4 feet long laid crosswise on said stringers; that said stringers were so placed that the edge of the plank projected about 10 inches further into the street than the stringers; that said plank so laid crosswise on said stringers was not nailed or otherwise fastened to said stringers, but that the same was lying loose thereon; that said stringers had become decayed and rotten; that the street at that point was graded about 10 inches below said sidewalk, and to the edge thereof; that as the plaintiff, in the exercise of due and ordinary care, was walking on said street, she stepped on one of the planks, and by reason of said plank being loose, and with no support under the same at that point, the same gave way, and struck her with great force on the knee, and badly injured her; that March 12, 1891, the plaintiff caused a written notice to be given to each of the trustees of the village, and also to the clerk of the village, of such injury and damage, stating therein the place where such injury and damage occurred, and describing generally the insufficiency and want of repair which occasioned it substantially as stated, and that the plaintiff claimed satisfaction thereof from the defendant. The defendant answered by way of admissions and denials and counter allegations. At the close of the trial the jury returned a general verdict in favor of the plaintiff, and assessed her damages at $2,000. From the judgment entered on said verdict in favor of the plaintiff, the defendant brings this appeal.S. J. Bradford and Ray S. Reid, for appellant.

W. F. McNally, for respondent.

CASSODAY, J. (after stating the facts).

The mere fact that the notice of the defect in the sidewalk located the same and the place of the injury about 25 feet north of McGovern's store, while the complaint located the same at a point about 10 feet north of the northwest corner of the building occupied by McGovern as a store, is not a fatal variance, nor so defective or uncertain as to defeat the action for want of a proper notice. They both locate it in the sidewalk on the east side of the street. The measurement of 25 feet from the store is somewhat indefinite as to the starting point, but probably was intended to designate the store door, whereas the complaint designates a point about 10 feet from the corner of the building. The certainty required in such notice has frequently been considered by this court, and it is unnecessary to discuss the question further. Laue v. City of Madison, 86 Wis. 453, 57 N. W. 93, and cases there cited.

It is contended that this action should have been dismissed, because it does not appear that the demand upon which the action is based was ever presented for audit and allowance, as required by section 893, Rev. St. It is enough to say that that section does not include actions or claims for personal torts like this. Kelley v. Madison, 43 Wis. 638;Hill v. City of Fond du Lac, 56 Wis. 245, 14 N. W. 25;Jung v. City of Stevens Point, 74 Wis. 550, 43 N. W. 513.

The objection to the effect that the defect in the sidewalk was, as a matter of law, latent, and could not have been discovered by the village authorities in the exercise of ordinary diligence, was properly overruled, for the reason that the evidence on that point was such as to make that a question for the jury. The instructions requested of a contrary import were properly overruled. The principal controversy in the trial court was as to whether the condition of the sidewalk in question was such as to enable the village authorities, in the exercise of ordinary diligence, to discover its...