Pumorlo v. City of Merrill

• Court: Wisconsin Supreme Court
• Writing for the Court: SIEBECKER
• Citation: Pumorlo v. City of Merrill, 125 Wis. 102, 103 N.W. 464 (Wis. 1905)
• Decision Date: 09 May 1905
• Parties: PUMORLO v. CITY OF MERRILL.

125 Wis. 102

103 N.W. 464

PUMORLO

v.CITY OF MERRILL.

Supreme Court of Wisconsin.

May 2, 1905.

Dissenting Opinion, May 9, 1905.

Appeal from Circuit Court, Waupaca County; Chas. M. Webb, Judge.

Action by Josephine Pumorlo against the city of Merrill. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

An action to recover damages for personal injuries alleged to have been caused by the insufficient and defective condition of a sidewalk on one of the streets of the defendant, an incorporated city. It appears that on the 14th day of August, 1901, the plaintiff, while walking over one of the sidewalks on one of the public streets of the city, known as “Main Street,” stepped into an opening in such walk, causing her to fall. This walk extends along the north side of a street connecting the part of the city known as the “West Side” with the part known as the “Sixth Ward.” The walk is on one of the principal streets of the city, and is much frequented and used by pedestrians. The walk was constructed of stringers placed lengthwise of the walk, and of planks placed crosswise, nailed thereto. The stringers rested on supports, which elevated the walk above the surface of the ground. It is alleged that this walk at the time in question was defective and insufficient, in that the material composing it was so worn and decayed that many parts had loose and broken boards, and that there were large openings or holes in the walk, and that such defective and insufficient condition had existed for a number of weeks before the accident happened, and for such a length of time that the city officers, in the exercise of ordinary care, ought to have discovered such insufficiency, and to have repaired it before the injuries were occasioned thereby. The plaintiff stated that while she was walking over this sidewalk on the day in question at about the hour of 8 o'clock in the evening, and while in the exercise of ordinary care, she stepped into a large hole in the walk, which caused her to fall, and produced the injuries and consequent pain and sickness from which she suffered. Plaintiff caused a notice in writing to be served on the city, as required by section 1339, Rev. St. 1898, and presented a claim against the city for compensation for the damages she had sustained. This claim was disallowed, and thereupon she appealed from such disallowance to the circuit court, where she prosecuted this action. The action was tried before the court and jury. The jury rendered a special verdict, and found: (1) That the sidewalk at the time and place in question was not reasonably safe for public use. (2) That the condition of the sidewalk at the place of accident was the proximate cause of plaintiff's injuries. (3) That the hole in the walk into which plaintiff stepped had existed continuously for three weeks or more immediately prior to the injury. (4) That the hole in question existed continuously for such a length of time before the time of the accident that the city authorities, in the exercise of ordinary care, ought to have known of it and to have repaired it before the injury was received. (5) That no want of ordinary care on the part of the plaintiff proximately contributed to the injuries. (6) That the sum of $3,000 would compensate plaintiff for the injuries sustained. The defendant moved for judgment notwithstanding the verdict, on the ground that the evidence did not support the verdict. This motion was denied. Thereupon it moved for a new trial because the court erred in the reception and rejection of evidence, and erred in instructing the jury, and because the verdict was contrary to the evidence and the law, and because the damages were excessive. This motion was denied, and the court thereupon ordered judgment for the plaintiff upon the special verdict for $3,000 damages and the costs of the action. This is an appeal from such judgment.

Dodge, J., dissenting in part.John A. Van Hecke (E. M. Smart and E. E. Browne, of counsel), for appellant.

Curtis & Reid and F. J. Smith, for respondent.

SIEBECKER, J. (after stating the facts).

Error is assigned upon the admission of testimony tending to show the defective condition of the sidewalk for some weeks prior to the day of the accident in the immediate vicinity of the hole complained of as bearing on the question of notice to the city officers of the defective condition of the sidewalk. It is quite clear from the evidence that the defect found by the jury consisted of a hole extending from the center stringer to the side of the walk, and that it was due to the worn and decayed condition of the plank. The evidence tended also to show that other planks in close proximity to the defect found had been much worn, decayed, and broken for a considerable time before the accident. Under these circumstances the bad general condition of the walk would attract attention, and lead to the discovery of the defect in question. This evidence was competent for this purpose, and by the instructions of the court was properly confined to this question in the case. Shaw v. Village of Sun Prairie, 74 Wis. 105, 42 N. W. 271;McHugh v. Town of Minocqua, 102 Wis. 291, 78 N. W. 478;Lyon v. City of Grand Rapids, 121 Wis. 609, 99 N. W. 311.

Defendant submitted to the court a request declaring that in cases of this nature the burden of proof was upon the plaintiff to establish by a preponderance of the evidence the affirmative of every issue involved in the case except as to the question of contributory negligence of the plaintiff. The request was not given as submitted, but the court instructed the jury as to such issues that in answering the several questions submitted the jury must determine the material issues involved in accordance with the effect and weight of the whole evidence carefully and impartially considered; and the court further instructed them in connection with the special questions covering these issues, whereon plaintiff had the burden of proof, and wherein an affirmative finding would establish defendant's liability, that to warrant them in so answering such questions they must be satisfied that their answers were sustained by the weight of the evidence or by the fair weight of the whole evidence. Bouvier, in speaking of the use of the expression “weight of evidence,” says it signifies that the proof on one side of a cause is greater than on the other. It is in this sense that the language of the trial court was used in the instructions, and it must have been so understood. This was, in effect, the same as if the instruction as to the burden of proof had been given as requested.

Error is assigned in respect to the court's definitions in its instructions of the meaning of the terms “reasonable diligence” and “ordinary care.” The court instructed the jury that: “The words ‘ordinary care’ * * * mean such prudence and care as an ordinarily careful person would use under the same or like circumstances;” and again, in another part of its charge: “The reasonable diligence here mentioned required of public officers of a city having charge of its public streets and walks means such diligence as like officers with like responsibilities usually and ordinarily employ in the discharge of their duties.” The phraseology employed is not as clear and as apt as some which might have been chosen from definitions of these terms in the decisions of this court, but the words convey the idea embodied in the various definitions of the terms approved by this court. Instances of such definitions are: “Such care as persons of ordinary care and prudence observe in and about their affairs,” or “such care as the great mass of mankind, or the majority of mankind, observe in the transactions of human life” (Dreher v. Town of Fitchburg, 22 Wis. 675, 99 Am. Dec. 91); such care as “a person or people of ordinary care and prudence ordinarily use, or the great mass or majority of people observe” (Duthie v. Town of Washburn, 87 Wis. 231, 58 N. W. 380); “such care as the great majority of men would use under like or similar circumstances” (Olwell v. Milwaukee Street R. Co., 92 Wis. 330, 66 N. W. 362); “such care as the great mass of mankind ordinarily exercise under the same or similar circumstances” (Nass v. Schulz, 105 Wis. 146, 81 N. W. 133); “such care as a man of ordinary care and prudence would have exercised under circumstances like those disclosed by the testimony in this case” (Hanlon v. Milwaukee Electric Railway & Light Co., 118 Wis. 210, 95 N. W. 100). In Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946, the test laid down is this: “Would a person of ordinary intelligence and prudence, under the same or similar circumstances, ordinarily so conduct himself?” and in the recent case of Rylander v. Laursen (Wis.) 102 N. W. 341, which treated of the degree of care required of a man using appliances in a dangerous business, the trial court's definition of it as the care “commonly and usually used by men engaged in the same or similar business” was held to be erroneous, and it was stated that “the true test is the use of such appliances as are ordinarily used by men of ordinary care and prudence, or by men generally engaged in the same or similar business under the same or similar circumstances.” The result to be deduced from all these various forms of expression is, as stated in Dehsoy v. Milwaukee Electric Railway & Light Co., 110 Wis. 412, 85 N. W. 973, that ordinary care is that degree of care “which the great mass of mankind, or the type of that mass, the ordinarily prudent man, exercises under like circumstances.” As an abstract proposition it is such care as the great mass of mankind generally exercise; and when it is sought to apply this degree of care to the affairs of life it must be applied to the same or similar circumstances. This standard excludes as erroneous the idea that it is such care as any person or persons would exercise under similar circumstances, because such care may...