Hiner v. City of Fond Du Lac

• Decision Date: 28 February 1888
• Parties: HINER v. CITY OF FOND DU LAC.
• Court: Wisconsin Supreme Court

71 Wis. 74

36 N.W. 632

HINER

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Winnebago county.

This action was originally brought by the plaintiff's intestate, Bridget Cuff, together with her husband, to recover damages alleged to have been received by the said Bridget on April 11, 1879, by reason of a defective sidewalk on Rose street, in the defendant city. The complaint was afterwards dismissed as to the husband, and the action proceeded in the name of the said Bridget, as the sole plaintiff. It is alleged, in the complaint, that the sidewalk in question adjoined lots 93 and 94. The complaint also states the condition of the sidewalk, and the circumstances of the injury, with reasonable particularity; and the duty of the city to keep the same in repair. It also alleges that notice in writing, signed by the plaintiff, “describing generally the insufficiency or want of repair of said sidewalk, and describing the place where the injury occurred, and claiming satisfaction for such injury from said city, was duly served on the city clerk of the city of Fond du Lac within ninety days after the happening of the accident.” The answer is substantially a general denial. It also alleges that said lots 93 and 94 were owned by some person unknown to the defendant; that it was the duty of such owner to keep the same in repair; and that the plaintiff has not exhausted all her legal remedies against such owner, or the occupant of the premises. The evidence given on the trial showed, conclusively, that the sidewalk at the place of the injury had been greatly damaged, and partly destroyed, by a freshet some weeks before the plaintiff was injured, portions of it having been washed away; and that it became thereby practically impassable, and remained in that condition until the day the plaintiff was injured. On that day, and before the injury, the sidewalk was repaired by and under the direction of the agent of the owner of the lot. Mrs. Cuff lived near the place, and frequently passed there, always going in the street, after the destruction of the sidewalk. She passed the place on the afternoon of April 11th while the sidewalk was being repaired, going in the street at that point. On her return home, in the evening, she found the planks of the walk all in place, and attempted to pass over them. The planks were laid lengthwise of the walk. She stepped on a plank that had not been spiked, one end of which did not rest upon the stringer. The plank was displaced by her weight, and she fell through the sidewalk, receiving the injuries complained of. At the close of the plaintiff's testimony a motion for a nonsuit was made on behalf of the defendant, and denied by the court. The jury returned a special verdict as follows: “(1) Was the sidewalk on the north side of Rose street, in the city Fond du Lac, defendant, on the 11th day of April, 1879, at or about the place described in this action, out of repair and unsafe to pass over? Yes. (2) Had such defect existed for a period of four weeks or more before said 11th day of April? Yes. (3) Were there suitable barriers erected or placed across said sidewalk on both sides of the place out of repair, on or about 7 o'clock, in the evening of April 11th, 1879, to remain there for the night, by persons engaged in repairing said walk, to warn off and give notice to all persons passing over the same, that said walk was out of repair and unsafe to pass over? No. (4) Was the defendant guilty of negligence in failing to repair said sidewalk, or in leaving it in the condition it was on said evening? Yes. (5) Did the plaintiff use ordinary care and prudence by choosing to pass over said sidewalk, so out of repair, on her return home, on the evening of said 11th day of April? Yes. (6) Did the plaintiff fall into said sidewalk, on the evening of April 11, 1879, and receive an injury therefrom? Yes. (7) Was such injury, if any, caused by the negligence of the city? Yes. (8) What amount of damages, if any, did the plaintiff sustain from the injury received in falling into said sidewalk, at the time and place aforesaid? $4,500.” At the same term, and before judgment, a motion was made on behalf of the defendant city for a new trial. Several reasons were assigned therefor, among them that the verdict was not supported by the evidence, and that the damages were excessive. The court ordered that a new trial be granted, unless the plaintiff remit $1,000 of the verdict. The plaintiff thereupon remitted $1,000 therefrom, and the motion for a new trial was denied. Judgment was thereupon entered for the plaintiff for $3,500, and costs. The defendant appeals from such judgment. After the appeal was taken, probably in the early part of 1887, the plaintiff, Mrs. Cuff, died, and July 11th of that year the action was revived, in this court, in the name of her administrator, the present plaintiff.

P. H. Martin and E. S. Bragg, for appellant.

J. H. McCrory, for respondent.

LYON, J., ( after stating the facts as above.)

This record develops at least three material errors, any one of which is necessarily fatal to the judgment. These will be stated and considered in their order.

1. At the commencement of the trial the defendant objected to the admission of any evidence, under the complaint, for the reason that it does not state facts sufficient to constitute a cause of action. The point of the objection was that the complaint does not aver the giving of any sufficient notice of the injury to the city authorities. The objection was overruled. If the giving of the notice required by law is not averred in the complaint, the pleading is fatally defective, and the objection should have been sustained. Susenguth v. Town of Rantoul, 48 Wis. 334, 4 N. W. Rep. 328;Benware v. Pine Valley, 53 Wis. 527, 10 N. W. Rep. 695;Railway Co. v. Langlade, 55 Wis. 116, 12 N. W. Rep. 357. The notice alleged in the complaint would probably be sufficient under section 1339, Rev. St., but that statute is not in force in the city of Fond du Lac. Section 204, tit. 17, of the charter of that city, enacted in 1879, is as follows: “No action in tort shall lie or be maintained against the city of Fond du Lac, unless a statement in writing, signed by the person injured, or claiming to be injured, of the wrong and circumstances thereof, and the amount of damages claimed, shall be presented to the common council within ninety days after the occurring or happening of the tort alleged.” Laws 1879, p. 443. It will be seen by comparing them that the charter provision is at variance with section 1339, Rev. St., in that it requires the notice to be given to the common council, instead of the mayor or city clerk, and requires the amount of damages claimed to be stated in the notice, which section 1339 does not, and also requires the wrong and circumstances thereof to be stated, instead of stating the place where such damages occurred, and the insufficiency or want of repair which occasioned it. Some of these variances are material, and render the two acts inconsistent with each other. They cannot both stand. Hence, under section 4086, Rev. St., the charter provision prevails, and section 1339 is not in force in the city of Fond du Lac. It is quite true that the testimony (received under objection) shows a substantial compliance with the requirements of section 204. But, without an amendment of the complaint, the testimony should not have been received. No offer to amend the complaint was made. It is clear that the...