LaConte v. City of Kenosha

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: LaConte v. City of Kenosha, 149 Wis. 343, 135 N.W. 843 (Wis. 1912)
• Decision Date: 23 April 1912
• Parties: LACONTE v. CITY OF KENOSHA.

149 Wis. 343

135 N.W. 843

LACONTE

v.CITY OF KENOSHA.

Supreme Court of Wisconsin.

April 23, 1912.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Sam Laconte, Nicola Laconte's administrator, against the City of Kenosha. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover for the benefit of the widow of plaintiff's intestate, alleged to have come to his death by insufficiency of a sidewalk in the defendant city.

The pleadings presented the case as indicated in the following, which the evidence established, or tended to show: On a dark night about 10 p. m. the intestate fell from one of defendant's sidewalks and death ensued by reason thereof. His home had been in Kenosha for a considerable time. He had taken out his first papers, entitling him to the rights of a citizen of Wisconsin, as the law then stood, though he was not a citizen of the United States. He had a wife, who was at his former home in Italy, and purposed having her join him at his new home. She was of the same mind and had taken some steps to effect the mutual purpose before the event in question. The walk was in front of an excavation which was some eight feet deep and between two buildings. Such excavation was made for the basement of a building to be erected. There was some sort of a barrier at the inner edge of the sidewalk which edge coincided with the brink of the excavation. The barrier was made of two pieces of lumber, one extending from a point some four or six feet from the surface of the walk at the corner of the building on one side down to the edge of the walk near the opposite building, and the other extending from the corresponding corner of such opposite building down to the walk in a similar manner, the two crossing nearly midway between such corner and being there nailed firmly together. There was a cement walk on the outside of the sidewalk area and up to within about three feet of the excavation, the surface of such three feet being about three inches lower down than that of the cement walk and composed of cinders, ashes and stones. The condition had been as indicated for some six or seven months. It was in one of the most frequented portions of the city. The deceased was well acquainted with the situation. While lawfully using the walk near the point where the barrier was fastened pretty high up on the building, by mistake or in some way, he fell into the excavation with fatal consequences. A few moments before such event he came from a nearby saloon where he had been drinking to some extent. He was not apparently intoxicated. He was unconscious when found and did not change in that regard so as to be able to disclose how he came to fall from the walk. No one saw him fall, but he was seen near the place thereof about the time of the occurrence. The surface of the walk along near the brink of the excavation was quite black with cinders and at the particular point it was quite difficult for one to see his surroundings. No notice of the accident, under section 1339 of the Statutes, was given. The cause was submitted to the jury, resulting in findings to this effect: The sidewalk, for want of a sufficient guard at the brink of the excavation, was not reasonably safe for public travel. The unsafe condition of the sidewalk was the proximate cause of the accident. Defendant had notice of such unsafe condition a sufficient length of time before the accident to enable it by the exercise of reasonable diligence to remedy the danger. The deceased was not guilty of any contributory negligence. It will require $3,000 to measure the recoverable damages.

In due course judgment was rendered in plaintiff's favor on the verdict.

Calvin Stewart, for appellant.

Robert Verne Baker, for respondent.

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

[1] The first question is this: In case of a person being injured by insufficiency of a public way within the scope of section 1339 of the Statutes, and death ensues, the circumstances being such that, had he survived, he would be entitled to maintain an action for compensation in respect to the injury, making a case within section 4255 of the Statutes, is an action maintainable for surviving relatives, regardless of the condition of said section 1339 in respect to serving notice of the injury? That is ruled in the affirmative by McKeigue v. City of Janesville, 68 Wis. 50, 31 N. W. 298. It has been so long settled as not to be open to discussion. The right created by section 1339 is one thing; that created by sections 4255 and 4256 is another. The notice is confined to the former. In case of the latter the vital condition is, death of a person caused by the fault of another such as would, if such person had survive, entitle him to pursue such other for the recovery of damages.

In case of a death from breach of duty under section 1339 the reasonable construction of the words of section 4255, “entitle the party injured to maintain an action,” etc., with reference to section 1339, is, entitle such person to maintain the action and do all the things essential to that end, including performance of the condition precedent to such maintenance; that is, give the requisite notice of the injury. The condition has no reference to the right secured to surviving relatives. If it were otherwise, in any case of death from breach of duty under section 1339 without opportunity to satisfy such conditions as to the deceased, sections 4255 and 4256 would have no efficiency whatever. No such absurd result could have been contemplated by the Legislature, as suggested in the case cited.

We are not unmindful of the fact that, in Carpenter v. Town of Rolling, 107 Wis. 559, 83 N. W. 953, where there was a death, as in this case, a notice was served under section 1339 and the court passed upon its sufficiency without suggesting that no notice was necessary. That question was not suggested, or, apparently, thought of. Counsel and the court treated the case as if notice were necessary and dealt only with sufficiency of the one given. There, certainly, was no intention to overrule McKeigue v. Janesville, supra. It was rightly decided. We should reach the same conclusion now if we were dealing with the matter from an original standpoint.

[2]...