Denley v. Willer

• Decision Date: 08 January 1884
• Parties: DENLEY v. WILLER.
• Court: Wisconsin Supreme Court

59 Wis. 240

18 N.W. 169

DENLEY

v.WILLER.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from county court, Milwaukee county.Peter Rupp and John A. Wall, for respondent, Christine Denley.

E. P. Smith and Nath. Pereles & Sons, for appellant, William Willer.

TAYLOR, J.

The respondent brought this action against the appellant to recover damages for an injury sustained by her in falling over a block of wood standing on the sidewalk in front of the appellant's premises, in the city of Milwaukee, while she was passing along said walk about 8 o'clock in the evening of August 11, 1882. The evidence shows that at the place where the injury was received the sidewalk was a planked walk about 14 feet wide, and that the block over which the respondent stumbled and fell was standing on the walk, about three feet from the edge thereof next the street gutter; that the reason the respondent stumbled over the same was that she turned aside to pass two girls, who were standing on the walk at the time. The complaint alleges “that the block was negligently and wrongfully placed there by the appellant, or caused to be placed there by him.” This was clearly a material allegation in the complaint, and in order to entitle the respondent to recover in this action, it was necessary for her to prove that allegation. The mere proof that the block was on the walk at 8 o'clock in the evening does not establish the fact that it was placed there, or caused to be placed there, by the appellant. To establish that fact something more is necessary. Proof that he was the owner of the block might raise a presumption, perhaps, that he either placed it there or caused it to be placed there; or proof that he had placed other blocks of a like character on the walk at the same place might raise such presumption. No such evidence was given on the part of the respondent in this case. The only evidence given by her which had any tendency to raise a presumption that the block might have been placed on the walk by the appellant, or that he caused it to be placed there, is the following: The respondent testified that some time after she received the injury she called on the appellant in regard to the matter, and, in a conversation between the parties in regard to the matter, appellant said “he needed the block in his business,” or, “he used that block in his business.” This evidence is not direct evidence, tending to prove that the appellant either placed or caused the block to be placed on the sidewalk, nor that he knew the block was there at the time the accident happened. It tends, perhaps, to raise a presumption that he did place it there or caused it to be placed there. It is hardly more than a scintilla of evidence tending to prove negligence on the part of the appellant, if negligence can be predicated upon the simple fact that he either placed or caused the block to be placed where it was on the sidewalk. There being no direct evidence tending to prove the negligence, and the admission proved, upon which it is claimed the jury would have the right to infer negligence, being entirely consistent with the statement of the appellant that he neither put it there himself or ordered any one to put it there, and that two hours before the accident happened he examined the sidewalk to see if there was anything obstructing the same, and that he did not see any block on the walk at that time, completely destroyed any inference of negligence which might be drawn from his admission as sworn to by the respondent.

It might be true that the appellant used the block in his business, or that he needed it in his business, and yet be equally true that he neither placed it where it was, nor caused it to be placed there. And the probabilities, under the evidence, are that it was placed there by some one who desired to have the same worked up in the appellant's factory; or if it was in fact the block of the appellant, that it was left upon the walk after the shop was closed the evening of the accident, by some person employed by the seller of the block to deliver the same to him; and upon either of the suppositions the appellant could not be charged with negligence because he did not know it was there when the accident happened. It is very clear, that under the evidence, the city could not have been held liable for permitting the sidewalk to be obstructed. In order to charge the city with negligence for permitting the walk to be obstructed, the party alleging such negligence would be compelled either to prove that some official of the city, whose business it was to look after the streets and see that they...