Raymond v. Kiseberg

• Citation: 84 Wis. 302,54 N.W. 612
• Parties: RAYMOND v. KISEBERG ET AL.
• Decision Date: 21 February 1893
• Court: United States State Supreme Court of Wisconsin

84 Wis. 302

54 N.W. 612

RAYMOND

v.KISEBERG ET AL.

Supreme Court of Wisconsin.

Feb. 21, 1893.

Appeal from circuit court, Calumet county; George W. Burnell, Judge.

Action by Henry Raymond against Dorothea Kiseberg and the city of Sheboygan for personal injuries. From a judgment for plaintiff, defendants appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

This was an action by plaintiff, Raymond, to recover damages for personal injuries sustained by the upsetting of a buggy in which he was riding upon a mound of earth in a public street in the city of Sheboygan, May 13, 1885. The action was first commenced against the defendant Dorothea Kiseberg and her husband, Joseph Kiseberg, in June, 1887, and the city was impleaded as a defendant July, 1889. Joseph Kiseberg died in March, 1889, and the action was tried against Dorothea and the city in April, 1891. The action has already been once before this court, upon general demurrer by the defendant city. 76 Wis. 335, 45 N. W. Rep. 125. It was then held that a good cause of action was stated against the city. It appeared upon the trial that the defendant Dorothea was the owner of a lot abutting on Ninth street in the defendant city, and in May, 1885, was building a house thereon, and that a portion of the dirt excavated from the cellar was placed in front of her lot in said Ninth street, making a pile, which plaintiff ran upon with his buggy in the evening of May 13th, and was thereby thrown out and injured. The length of time which this pile of dirt remained in the street before the accident, the height and extent thereof, and whether any warning light was displayed thereon during the evening in question, were all controverted questions upon the trial. A special verdict was rendered by the jury, as follows: “(1) Was the plaintiff's injury caused by the want of ordinary care and prudence on the part of the defendants, or either of them? Answer. Yes. (2) If you answer the first question, ‘Yes,’ then state which one was so guilty. A. The city of Sheboygan. (3) Did the city have notice of the defect for such a length of time prior to the injury that it ought, in the exercise of ordinary care and prudence, to have removed the same? A. No. [[[Answered by the court.] (4) Had the defect existed for such a length of time prior to the injury that the city ought to have known of the same? A. Yes. (5) Was the plaintiff guilty of the want of ordinary care and prudence on his part which contributed proximately to the injury? A. No. (6) Was there a lighted lantern upon or near the mound of earth on the night of the accident, for warning travelers of the obstruction? A. No. (7) Did the defendant Kiseberg use ordinary care and prudence on the night in question to avoid injury from the obstruction to travelers on the night in question? A. No. (8) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages? A. Five thousand dollars.” Judgment was rendered on the verdict against both defendants, and they both appeal.Seaman & Williams, Carl Runge, and A. C. Prescott, for appellants.

As to the error of the court in instructing the jury that the defendant Mrs. Kiseberg could not rightfully use more than her side or half of the street upon which to place the dirt dug from her cellar and the materials used in the house which she was building on her adjoining lot. Raymond v. City of Sheboygan, 70 Wis. 318, 35 N. W. Rep. 540;Com. v. Passmore, 1 Serg. & R. 217;Van O'Linda v. Lothrop, 21 Pick. 292; King v. City of Cleveland, 28 Fed. Rep. 835, approved in 132 U. S. 295, 10 Sup. Ct. Rep. 90;Wood v. Mears, 12 Ind. 515;State v. Mayor, etc., of Omaha, 14 Neb. 265, 15 N. W. Rep. 210;Chicago City v. Robbins, 2 Black, 418;Clark v. Fry, 8 Ohio St. 358;Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264; dissenting opinion of Chief Justice Morse in McArthur v. Saginaw, 58 Mich. 357, 25 N. W. Rep. 313;Agnew v. Corunna, (Mich.) 21 N. W. Rep. 873;Hundhausen v. Bond, 36 Wis. 29; Davis v. Winslow, 51 Me. 264; Graves v. Shattuck, 35 N. H. 268; 2 Dill. Mun. Corp. (3d Ed.) § 730; Whitt. Smith, Neg. 110; Jones, Neg. Mun. Corp. § 79; 3 Lawson, Rights, Rem. & Pr. § 1164; 9 Amer. & Eng. Enc. Law, 413, and note.

G. W. Foster, Finch & Barber, and F. Beglinger, for respondent.

WINSLOW, J., (after stating the facts).

We regard the special verdict as clearly insufficient to justify a judgment against the defendant Mrs. Kiseberg. True, it is found in reply to the sixth and seventh questions that no lighted lantern was on or near the pile of dirt on the night of the accident, and that Mrs. Kiseberg did not use ordinary care and prudence to prevent injury to travelers from the obstruction on the night in question, but it is nowhere found that the plaintiff's injury was the result of the absence of a lantern, or of the failure of Mrs. Kiseberg to exercise care, nor does such a conclusion necessarily follow. Furthermore, the answers to the first and second questions clearly negative the idea that any want of care on the part of Mrs. Kiseberg caused the accident. The substance and legal effect of these two questions and answers are that the plaintiff's injury was caused by want of ordinary care on the part of the city of Sheboygan alone. This is made more apparent when we consider the charge of the court in regard to the second question, viz: “Now, the next question is: ‘If you answer the first question, “yes,” then state which one was so guilty, or whether both were.’ Now, if you should find that one of them was guilty of negligence, and the other not, then you would write in the name of the one which was guilty of negligence, as your answer to this question. If you should find that both of them were guilty of negligence or the want of ordinary care and prudence, then you will write in, as your answer to this question, both of them. I don't know as I can make that any plainer to you, gentlemen, and I think you understand that. If you answer the first question, ‘yes,’ then you are to name here which one of the two was guilty of negligence, if only one of the two; or, if both of them were guilty of negligence, then you will write in both of them, as your answer.” Combining the first, second, sixth, and seventh findings, the conclusions of the jury upon the question of Mrs. Kiseberg's alleged negligence and its results may be briefly stated thus: There was no lantern displayed, and Mrs. Kiseberg did not use ordinary care to prevent injury to travelers, but the plaintiff's injury was caused by the negligence of the city of Sheboygan alone. There is no general verdict to which we can resort to supply facts which are missing in the special findings; and there being no finding, express or implied, that the plaintiff's injury was caused by any negligence of Mrs. Kiseberg, but, on the other hand, a direct finding that it was caused by the negligence of the city alone, there can be no judgment on the verdict against Mrs. Kiseberg. These...