McGowan v. City of Watertown

• Decision Date: 29 January 1907
• Citation: 130 Wis. 555,110 N.W. 402
• Parties: MCGOWAN v. CITY OF WATERTOWN.
• Court: Wisconsin Supreme Court

130 Wis. 555

110 N.W. 402

MCGOWAN

v.CITY OF WATERTOWN.

Supreme Court of Wisconsin.

Jan. 29, 1907.

Appeal from Circuit Court, Dodge County; James J. Dick, Judge.

Action by Edward McGowan against the city of Watertown. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages, resulting from defect in highway, occurring on the night of May 13, 1905. It was alleged and established that on the 12th and 13th of May a trench was dug from the west curb of North Washington street to a point east of the center of the street to connect with the sewer therein by persons licensed so to do by the city but in the employ of private individuals. Between 9 and 10 o'clock on the evening of the 13th--a dark and stormy evening--the plaintiff was driving his horse in a two-wheeled cart northward on that street, with no knowledge of the existence of such trench. He saw a red lantern somewhat east of the middle of the street and turned his horse to the west side and drove into the ditch, whereby the horse was killed and the cart and harness damaged. There was evidence that the diggers had placed a red lantern at the eastern extremity of the trench and also one at the west end near the curb, and some evidence that they placed barriers at the easterly end. The height of the bank of earth adjoining the trench was in some dispute, and whether the westerly lantern was burning at the time of the accident, also the extent to which the place was lighted by an electric street light 185 feet away, but claimed to be obstructed by foliage. The court first, on application of defendant, made order joining as defendants the persons who dug the trench, but at the commencement of the trial vacated such order. A special verdict was taken wherein the jury found that (1) plaintiff suffered the injury; (2) the street at the place was not in a reasonably safe condition for public use; (3) the officers of the city had notice of such insufficient condition for a sufficient length of time to have placed and maintained the street in a reasonably safe condition for public use by the exercise of reasonable diligence; (4) such insufficient condition was the proximate cause of the injury; (5) plaintiff was not guilty of contributory negligence; and (6) damages. After overruling a motion to set aside this verdict, judgment was entered thereon in favor of the plaintiff for the amount found, from which the defendant appeals.C. A. Kading, City Atty. (M. L. Lueck, of counsel), for appellant.

Harlow Pease, for respondent.

DODGE, J. (after stating the facts).

1. The first assignment of error is predicated upon certain remarks of the court apropos of a discussion by counsel as to the admissibility of an ordinance requiring that drain layers should guard any excavation in the street by barriers and lighted lamps. Counsel for plaintiff summarized the provisions of the ordinance as requiring that any opening be inclosed with sufficient barriers, etc., and the court said, “that is declaratory of the common law.” Counsel for defendant: “We object to the remarks of the court.” By the Court: “The whole question is for the jury to say whether they were negligent or not; a barrier is not necessarily a protection, it must be a sufficient barrier. I have charged it in several cases that have gone up and been sustained”--to which remarks the defendant excepted. This assignment of error cannot be sustained. This was merely colloquy between court and counsel, instigated by the latter, in which it was certainly competent for the court to test the contention of counsel by inquiry or counter suggestion. While the jury were present, there being no request for their withdrawal, these remarks were not addressed to them, but their duty was fully explained to them in the charge to consider all the evidence as to the situation, presence, or absence of lights and of barriers, and sufficiency of the latter, and therefrom to reach the conclusion whether the street at this place was in a reasonably safe condition for public use. Under the instructions given, the jury were permitted to find the street safe even though no barriers had been erected. The expression of an erroneous opinion by the court to counsel during a discussion, although in the presence of the jury, except in rare cases of obvious prejudice, cannot be ground of reversal when the conclusion finally reached and carried into effect, either by ruling on...