Gagan v. City of Janesville

• Decision Date: 27 April 1900
• Citation: 82 N.W. 558,106 Wis. 662
• Parties: GAGAN v. CITY OF JANESVILLE.
• Court: Wisconsin Supreme Court

106 Wis. 662

82 N.W. 558

GAGAN

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

April 27, 1900.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action for injuries by Mary Gagan against the city of Janesville. From a judgment in favor of plaintiff, defendant appeals, and plaintiff appeals from an order refusing to dismiss defendant's bill of exceptions. Reversed on defendant's appeal, and plaintiff's appeal dismissed.

An action for personal injury claimed to have been suffered by the plaintiff upon a defective sidewalk of the defendant city on May 15, 1895. The notice served on the city on August 13, 1895, and the complaint described the defect as consisting of “a missing board or plank from the sidewalk or footway, which caused a deep hole and depression in said sidewalk, extending about seven feet easterly and westerly along the center of said sidewalk, and about ten inches wide,” and alleges that the plaintiff was violently thrown down “by reason of her foot going into a hole in said sidewalk, and under the planks or boards forming part of the covering of said sidewalk, * * * which fall and injury were caused by the defects and insufficiencies in said sidewalk as hereinbefore set forth.” The only evidence of the accident was given by the plaintiff herself, and was as follows: “There were three boards (longitudinal) in the sidewalk where I was injured, and the middle board was out; and I walked in carefully by the fence, not thinking about anything; and the board inside was going up,--used to raise up,--and I slipped off of it, and fell down in the hole.” Again: “The walk was all broke and full of nails and splinters near the point where I was injured. The boards were about seven or eight inches wide. Couldn't tell exactly. They were narrow boards. Where the middle board was gone out, the hole left was six or seven inches from the level of the boards, and there was a kind of slant on the inside and outside boards that you couldn't walk on.” She further testified: “At the place where I fell on this walk the boards were lengthwise, and there were three narrow boards, and the middle one was out,--about six or seven feet of it. I attempted to pass on the board nearest the fence. I thought I would go careful,--just go the same as I always did; and then I stepped on the board. The board jumped up. It was kind of loose. My right foot slipped off. It went down in the hole that the board was out.” And again: “As I came along the street that morning, I was walking careful as I could. I thought I would pass the same as I did many times before, and when I came to this board I stepped on the board, and it kind of rocked, and turned my foot a little, and I fell out in this hole. I was thrown out against the other board. Q. Did your foot go into the hole where the board was missing? A. Yes, sir. The board kind of slanted and threw me out.” At the close of the plaintiff's testimony, defendant moved for a nonsuit on the ground that the evidence established contributory negligence, which was denied, and, after all the testimony was in, defendant moved for the direction of a verdict in its favor, which motion was also denied, exceptions being duly reserved. The refusal of these motions are the only errors assigned, no motion for a new trial or to set aside the verdict having been passed on by the court. Verdict was rendered and judgment entered in favor of the plaintiff, from which the defendant appeals. A motion was made by the plaintiff to strike out the bill of exceptions, and was...