Berndt v. City of Cudahy

• Decision Date: 01 February 1910
• Citation: 141 Wis. 457,124 N.W. 511
• Parties: BERNDT v. CITY OF CUDAHY.
• Court: Wisconsin Supreme Court

141 Wis. 457

124 N.W. 511

BERNDT

v.CITY OF CUDAHY.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Carl Berndt against the city of Cudahy. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for personal injuries resulting to the plaintiff by being thrown from a wagon upon an alleged defective highway in the defendant city March 21, 1905. The action was tried before a jury and a special verdict rendered finding: (1) The highway was not reasonably safe for public travel for persons with teams, exercising ordinary care. (2) The defendant had notice of the insufficiency, so that in the exercise of reasonable diligence it might have remedied it before the plaintiff's injury. (3) The unsafe condition of the highway was the proximate cause of plaintiff's injury. (4) He was not under the influence of intoxicants at the time. (5) He was not guilty of contributory negligence. (6) Defendant was not misled by the notice of injury served. (7) Plaintiff's damages were $2,500. Upon motion the trial court ordered a new trial unless plaintiff remitted $1,000 of the damages, which being done judgment was rendered for the plaintiff for $1,500 and costs, and defendant appeals.F. X. Boden, for appellant.

Carroll & Carroll, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The principal, and really the only serious, error claimed by the defendant, is that the notice of injury given by the plaintiff to the defendant, under section 1339, St. 1898, was fatally defective, in that it described the defect in the highway into which the plaintiff's wagon ran as an excavation which had been so negligently and loosely refilled that the surface gave way and the wheel of plaintiff's wagon suddenly sank down therein to a great depth; while the complaint and proofs showed the defect, if any, to have been a hole in the highway filled with mud and water, into which the wheel of defendant's wagon plunged. It was admitted that the notice in all other respects was sufficient.

The statute (section 1339, St. 1898) provides that the notice shall not be held insufficient solely because of any inaccuracy or failure in properly describing the place or the insufficiency or want of repair, provided it appear that there was no intention on the part of the injured party to mislead the other party, and that such other party was not, in fact, misled. Generally speaking, the question...