Collins v. City of Janesville

• Decision Date: 25 September 1900
• Citation: 107 Wis. 436,83 N.W. 695
• Parties: COLLINS v. CITY OF JANESVILLE.
• Court: Wisconsin Supreme Court

107 Wis. 436

83 N.W. 695

COLLINS

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

Sept. 25, 1900.

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

Action by Ann Collins against the city of Janesville. From a decree in favor of the plaintiff, defendant appeals. Reversed.F. C. Burpee, for appellant.

J. J. Cunningham, for respondent.

WINSLOW, J.

This is an action for personal injuries alleged to have been suffered by the plaintiff by reason of a fall upon a defective sidewalk on Cherry street, in the defendant city, on the 5th day of June, 1895, resulting in a simple fracture of the fibula about an inch above the ankle joint. The plaintiff was a minor, 13 years of age, at the time of the accident, and the injury is claimed to be permanent. The answer denies the alleged defect in the sidewalk, and alleges contributory negligence. The case was here upon an appeal from the former judgment, and reversed for error. Collins v. City of Janesville, 99 Wis. 464, 75 N. W. 88. Another trial has been had, resulting in a verdict for the plaintiff for $2,500. A new trial was granted by the circuit court unless the plaintiff remit $800 from the verdict. The plaintiff made the remission, and judgment was entered for the plaintiff for $1,700 damages and costs, and the defendant appeals.

1. Dr. Pember, the physician who treated the injury, testified, upon direct examination, that the injury might be serious. Upon cross-examination by the defendant's counsel, he was asked if he regarded the injury as permanent, and an objection to the question was sustained. We regard this as error. The plaintiff claimed a permanent injury, and the doctor's statement that it might be serious was, at best, indefinite, and might well be understood by the jury as indicating his opinion that it might or would be permanent, and it was certainly proper for the defendant to ascertain by direct questions whether that was the meaning of his previous answer.

2. The defect claimed to exist in the sidewalk was a hole caused by a broken board, part of which was missing. The statutory notice of the injury given by the plaintiff to the city described the defect as consisting of “missing boards or planks from the sidewalk or footway on the easterly side of Cherry street,” in front of “the house and premises No. 203 Cherry street, owned by Wilber F. Carle.” These premises are 60 feet in width, and objection was duly made to the reception of the notice in evidence because the notice did not fix the place of the accident with sufficient particularity. We think the objection was properly overruled. Chapter 85 of the Laws of 1893 provides, in substance, that no such notice shall be deemed insufficient solely by reason of “any inaccuracy or failure in describing the place and the insufficiency or want of repair,” in the absence of any intention to mislead and of any misleading in fact. It does not appear in the case that the city was misled in fact, or that there was intention to mislead.

3. The plaintiff testified that she knew before the accident that the hole in the sidewalk into which she claims she fell was there, and that there were similar holes in close proximity in the same sidewalk. In view of this evidence, the defendant requested the following charge, which was refused: “The plaintiff admits that she knew that the sidewalk in question was in a...