Mauch v. City of Hartford

• Decision Date: 05 November 1901
• Citation: 87 N.W. 816,112 Wis. 40
• Parties: MAUCH v. CITY OF HARTFORD.
• Court: Wisconsin Supreme Court

112 Wis. 40

87 N.W. 816

MAUCH

v.CITY OF HARTFORD.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Syllabus by the Judge.

1. A change in a special city charter, pursuant to the general law on the subject, has the same effect as would an amendment thereof by direct legislative enactment, if the constitution permitted such an enactment.

2. A change in a special city charter, in the manner provided in the general law on the subject, is controlled by section 4974, Rev. St. 1898, as regards its effect upon suits to recover on causes of action dependent in whole or in part upon the provisions of the charter repealed by such change.

3. The rule in regard to the use of ordinary photographs upon the trial of a cause, for the better understanding by the jury of the evidence or the merits of the case, applies to photographs taken by the aid of X-rays.

4. Whether a photograph is proper or not in any particular situation upon the trial of a case is a matter within the sound discretion of the trial judge, and his determination cannot be disturbed if there was any reasonable ground therefor.

5. In a complaint grounded on negligence, a claim made for damages for a specific injury reaches to and includes injuries directly caused by it and so closely connected therewith as to be rightly considered a part thereof.

6. A claim made in a complaint for a specific injury “and other injuries” is indefinite and uncertain as to what the term “other injuries” means, but is sufficiently suggestive to render evidence admissible to prove injuries other than the one specifically described.

7. Evidence by a street commissioner of a city, to the effect that a sidewalk was generally out of repair, both as to the surface thereof and the stringers, some three months before the happening of an accident alleged to have been caused by reason of a defect in the walk at a particular point, is competent for the purpose of showing constructive notice to the city of such particular defect, notwithstanding evidence by the street commissioner that he repaired the walk, so far as practicable, by using the old material and without putting in new stringers, before the accident happened.

8. Evidence by the street commissioner of a city that he knew by personal examination that the stringers of a sidewalk were “all used up,” established actual notice to the city of the defective condition of the walk in that regard at the particular place therein which was in controversy.

9. If all the facts in issue are covered in a special verdict by special questions free from harmful error, the refusal to submit other questions, or their submission, does not constitute reversible error if error at all, unless the number of questions submitted, and their character, be such that there is reasonable ground to believe that the essential issues involved were not intelligently and fairly considered and passed upon by the jury.

10. Only special questions, covering the issues made by the pleadings and controverted on the evidence, each so framed as to cover a single issue and admit of a direct answer, should be included in a special verdict.

11. In framing a special verdict, issues that are single should not be subdivided and covered by several questions, nor should questions be so framed as to require the jury to decide a single issue by viewing it in various aspects.

12. A special verdict should, so far as practicable, be framed so as to secure an intelligent consideration, upon the evidence, of the issues made by the pleadings and controverted on the evidence, separately, and a decision thereof without reference to the final result upon the rights of the parties. The number of questions, ordinarily, should coincide with the number of single, controverted issues of fact and be arranged in logical order.

13. What is said by a supreme judicial tribunal in an advisory way as to matters of procedure in trial courts should be followed as a judicial direction.

14. In an action founded on negligence, the subject of contributory negligence may be submitted to the jury in this form: “Did a slight want of ordinary care on the part of the plaintiff contribute to the injury?” though the practice of dividing such subject into want of ordinary care and slight want of ordinary care is not approved.

15. The better way to submit the subject of contributory negligence of the plaintiff, in an action grounded on negligence, is by the simple question, “Was there any want of ordinary care on the part of the plaintiff, that contributed to the injury complained of?” and to explain to the jury that any want of ordinary care upon the part of the plaintiff, however slight, established by a preponderance of the evidence to the satisfaction of the jury, requires an affirmative answer to the question.

16. It is improper to submit the subject of want of ordinary care of the plaintiff, in an action grounded on negligence, in this form: “Was the plaintiff guilty of a slight want of ordinary care and prudence which contributed directly to cause the injury complained of?” the mischief being in the word “directly.”

17. In order to make want of ordinary care of the plaintiff, in an action grounded on negligence, a defense to the defendant's negligence, there must be the same proximate connection between the former's fault and the injury as between the latter's fault and such injury; hence, it is just as erroneous to say the proximate cause is the direct cause when applied to the plaintiff as when applied to the defendant.

18. It is improper in a question submitted to a jury, in an action grounded on negligence, or in an instruction to the jury, to limit the probable effect of the negligent act of the defendant, which he ought reasonably to have apprehended, to the happening of the particular injury in question.

19. Where a special verdict is taken, it is improper to ask the jury to find whether they are in accord with the opinion which the court may reach upon the facts found by them, or to make any general finding of any kind in respect to the right of the plaintiff or the defendant.

20. Knowledge of the officer or officers of a city charged with the immediate duty of repairing its sidewalks, of the insufficient condition thereof in respect to being out of repair after having been once properly constructed, satisfies the element of notice to the defendant of such insufficient condition, in an action against the city to recover damages for a personal injury caused thereby, if such knowledge existed a sufficient length of time before the injury to have enabled the city, by the exercise of reasonable diligence, to repair the defect.

21. Where a special verdict is taken, general instructions on any subject involved should not be given.

22. Regardless of how numerous and inexcusable may be the errors committed on the trial of a cause, the judgment rendered must be affirmed on appeal, unless it appears probable that the substantial rights of the unsuccessful party were thereby injuriously affected.

Appeal from circuit court, Washington county; James J. Dick, Judge.

Action by Anna Mauch against the city of Hartford. Judgment for plaintiff, and defendant appeals. Affirmed.

Bardeen, J., dissenting.

Action for damages for injuries alleged to have been caused to plaintiff by the unsafe condition of a sidewalk in the defendant city. The insufficiency of the walk alleged was decayed stringers upon which the plank covering of the walk was laid, causing the planks to be loose. It was claimed that the accident happened by plaintiff stepping upon the end of a loose plank, causing it to fly up and throw her down. The injuries alleged were the breaking of plaintiff's arm and other injuries. All the essential facts required for a cause of action to recover therefor were alleged, if the action was seasonably and in a proper manner commenced and the cause of action preserved down to the trial. Notice of the condition of the walk in time for defendant to have remedied the defect, if one existed, and the necessity for repairs, were put in issue by the answer, and contributory negligence was pleaded as a defense. Answer was further made that plaintiff presented her claim against the city for action by the common council thereof August 22, 1898, but that the council failed to pass upon the same and no appeal was taken from such failure, treating the same as a disallowance, or as equivalent to a disallowance, of the claim; and that the action was commenced October 11, 1898. A special verdict was duly demanded by defendant. The jury answered the special questions, submitted in accordance with such demand, as follows:

“(1) Did the plaintiff, Anna Mauch, receive an injury in the city of Hartford, on the 7th day of August in the year 1898? Answer. Yes.

(2) Did the plaintiff, on the 7th day of August, 1898, receive the injury complained of by falling on the sidewalk on the east side of Branch street at a point sixty-nine feet in a southeasterly direction from a lamp-post situated on the west side of the sidewalk at a point where the sidewalk on the east side of Main street connects with the sidewalk on Branch street? Answer. Yes.

(3) How was the injury to the plaintiff caused? Answer. By a loose plank on sidewalk, tripping her.

(3 1/4) Is the alleged injury to the plaintiff arising from the accident complained of, permanent? Answer. Yes.

(3 1/2) If you answer the 3 1/4 question ‘Yes,’ then is the permanency of the injury without the fault of the plaintiff? Answer. Yes, without her fault.

(4) Was said sidewalk at the place where the alleged injury is claimed to have been received, defective and out of repair on the 7th day of August, 1898? Answer. Yes.

(5) If you shall answer the fourth question ‘Yes,’ then in what respect was such sidewalk defective and out of order? Answer. A rotten stringer.

(6) If you shall answer the fourth question ‘Yes,’ then for how long a time previous to the 7th day of August, 1898, had such sidewalk...