Benson v. City of Madison

• Decision Date: 22 November 1898
• Citation: 77 N.W. 161,101 Wis. 312
• Parties: BENSON v. CITY OF MADISON ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 312

77 N.W. 161

BENSON

v.CITY OF MADISON ET AL.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Annetta A. Benson against the city of Madison and J. M. Kelley. From a judgment against the city, and dismissing the complaint as to defendant Kelley, the city appeals. Reversed.

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the insufficiency or want of repair of a certain crosswalk on the south side of State street at its intersection with Fairchild street, in the city of Madison. The notice served on the city, in describing the alleged defect, says that the crosswalk had been torn up, and the surface of the ground where pedestrians were compelled to walk was left rough and uneven, covered with loose stones, was lower than the sidewalk, and where the crosswalk would join the sidewalk the boards of the sidewalk stuck out and projected above the level of Fairchild street. The complaint follows the notice substantially in its description of the alleged defect. The questions litigated on the trial and found in the special verdict with reference to the alleged defect were whether there was an apron extending from the old walk across the gutter to the macadam of the street, and whether there was a step from the level of the sidewalk down to the pavement in the street. The jury answered both these questions in the affirmative, and further found that the existence of the step was an “insufficiency or want of repair in the street in question.” Other questions were propounded and answered, which were deemed sufficient to authorize the judgment for plaintiff and against the city. The work of repairing Fairchild street was done by the defendant Kelley under a contract with the city to hold it harmless from damages occasioned by the negligent performance of the work. Kelley was made a party defendant under allegations that he was responsible for the defective condition of the street. His answer was that he replaced the apron leading from the Nolden corner easterly, and that no defect existed in the street at the time of the accident. The court charged the jury that, if he repaired the street according to plans and specifications prepared by the city, he could not be held liable. The jury found that the defect in the street was not caused by any neglect of Kelley. Judgment dismissing the complaint as to him, and against the city, was entered, from which the city appealed.

J. A. Aylward, for appellant.

R. M. La Follette and G. E. Roe, for respondent.

BARDEEN, J. (after stating the facts).

The accident and resulting injury to the plaintiff, for which damages are claimed in this action, happened on the evening of December 5, 1894. Section 1339, Rev. St. 1878, as it then existed provided that no such action should be maintained unless, within 90 days from the happening of the event causing such damage, notice in writing should be served on the proper city officials, stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it, and that satisfaction therefor was claimed of such city. The part of the notice served by the plaintiff in this case, describing the alleged defect in the street, and its location, is as follows: “On the south side of State street at the intersection of State street and Fairchild street.” The insufficiency and want of repair of said street which occasioned such injury and damage are described as follows, to wit: “The crosswalk on the south side of State street across Fairchild street was torn up, and the surface of the ground where pedestrians were compelled to walk was left rough and uneven; that the ground where said walk had been was covered with loose stones, which were permitted to lie where pedestrians had to walk, and were lower than the sidewalk on the south side of State street, where the said crosswalk should join said sidewalk, and boards of said sidewalk stuck out and projected above the level of said Fairchild street.” The complaint describes such defect as follows: “That said crosswalk, along which pedestrians upon the south side of State street were obliged to pass, was torn up, and rendered much lower than the sidewalk connecting therewith upon the east side and west side of Fairchild street, and was covered with loose stones and boards; that said sidewalk, at the point where said crosswalk connected with said sidewalk upon the south side of said State street and the westerly corner of Fairchild street, where it connected with said State street, was sticking up, and covered with loose stones in such a way as to greatly impede travel.” The complaint further alleged the absence of any light, guard, or barrier at the place in question. The accident is alleged to have occurred by the plaintiff stepping upon some of the loose stones which had been “permitted to be and remain upon said sidewalk and...