Hay v. City of Baraboo

• Citation: 105 N.W. 654,127 Wis. 1
• Parties: HAY v. CITY OF BARABOO.
• Decision Date: 12 December 1905
• Court: United States State Supreme Court of Wisconsin

127 Wis. 1

105 N.W. 654

HAY

v.CITY OF BARABOO.^a1

Supreme Court of Wisconsin.

Dec. 12, 1905.

Syllabus by the Judge.

A city charter provision making it the duty of the owners or occupants of premises in front of which sidewalks are located to keep such walks in repair or pay the expenses incurred by the municipality in doing so, does not impliedly make such owners or occupants liable to travelers for injuries occasioned by the walks being out of repair.

If in addition to the duty mentioned in the foregoing paragraph, the charter provides that in case of an injury to person or property by reason of any defect in a sidewalk for which the city would be liable, arising from or produced by the wrong, default or negligence of any person other than the city, the guilty person shall be primarily liable therefor, and the city shall not be liable therefor in advance of the exhaustion by the injured person of all legal remedies to enforce the private liability, such liability is not deemed to be of the character of that created by section 1339, Rev. St. 1898, but such as upon common-law principles a city is liable independently of statute.

Charter provisions of the sort mentioned in paragraphs 1 and 2 aforesaid do not give rise to any liability either public or private to one injured by reason of a defective sidewalk. Responsibility for the results to person or property from faulty construction of sidewalks or want of repair thereof rests wholly on section 1339, Rev. St. 1898, while responsibility for the results to person or property of active wrong-doing creating a nuisance rests on the common law. Such provisions as those mentioned in paragraph 2 deal with the latter.

A provision such as that mentioned in paragraph 2, given effect broadly would materially modify section 1339, Rev. St. 1898. It should be strictly construed, first, because it would operate to vary the common law as to personal liability; second, it would to some extent repeal section 1339, Rev. St. 1898.

Repeals and modifications of existing laws by implication are never favored. In case of a seeming conflict between two legislative enactments, all rules for judicial construction are to be applied to the end that they may be reconciled before reaching a conclusion that the one repeals or modifies the other.

Nothing short of language unmistakably creating a liability of the owner or occupant of premises, in front of which a sidewalk is located, for damages to person or property caused by the insufficiency of such walk, and making such liability supersede to any extent that of the city under section 1339, Rev. St. 1898, can legitimately be given that effect.

The last foregoing rule is satisfied by provisions in the charter of the city of Fond du Lac, treated in Hiner, Adm'r, etc., v. City of Fond du Lac, 36 N. W. 632, 71 Wis. 74, and similar cases, but not by provisions in the charter of the city of Janesville, treated in Selleck v. Tallman, 67 N. W. 36, 93 Wis. 246, and similar cases.

The notice required by section 1339, Rev. St. 1898, to be given the municipality in case of injury to a person by reason of want of repair of a sidewalk is a requisite to the creation of a right to compensation for injury.

A charter provision prohibiting the enforcement of such a right as that mentioned in paragraph 8, except by presentation of the claim to the city council, and in case of adverse action an appeal to the circuit court regulates the remedy, and is permissible under the rule that the Legislature may take away the ordinary remedy for the enforcement of a right so long as it affords another which is adequate.

A charter provision, in addition to the one regulating the remedy, that no action shall be maintained against the city to enforce any tortious liability, unless a notice in writing signed by the person injured, or claiming to be injured, of the wrong and circumstances thereof and amount of damages claimed, shall be presented to the council within ninety days after the ocurrence creating the damage, bears on the remedy and is a statute of limitations.

Provisions such as are mentioned in the eighth, ninth and tenth paragraphs constitute a complete system as to statutory liability. One is essential to the right. The other relates to the procedure for the enforcement of the right. The third fixes the time within which the remedy is available, and at the expiration thereof, in legal effect, extinguishes the right.

Adoption by a city existing under a special charter of a part of the general charter, pro tanto amends the former and renders it to that extent subject to further amendment by legislative action alone to change the part so adopted.

Upon the reversal of a judgment by this court the case is required to be remanded for a new trial only when necessary, and that condition is always deemed to exist, as to a jury case, when, under any circumstances, a new trial might result otherwise than in such a judgment being awarded as would have been rendered before had that fatal error, or errors, not been committed.

The practice rule that it is not permissible for a defendant to have judgment in the trial court notwithstanding the verdict, and, to the extent indicated, the one that a judgment in a jury case after trial can only be legitimately granted on a verdict which will support it, are obsolete.

A verdict having been rendered, which upon its face is contrary to the undisputed evidence, it may be changed upon motion to correspond with the established state of the case and a judgment be rendered thereon, or judgment may be rendered upon motion of the party against whom the erroneous verdict stands notwithstanding the same. In the event of the proper motion being made in either case in the circuit court and denied and of judgment being rendered according to the erroneous verdict, and the same being reversed upon appeal to this court, the cause may be remanded with directions to grant the motion and render judgment accordingly.

The last foregoing rule is based on the theory that a motion having been made in the court below enabling such court to pass upon the identical question decided here and requiring a reversal, the proper solution of which question in the first instance must necessarily have terminated the litigation, the prevailing party on appeal is entitled to have the error fully corrected, which can only be done by requiring the lower court to pass upon such question as it should have done originally, and to close the case accordingly.

The rule stated is extended beyond situations to which it has previously been applied, so that in case of a motion for the direction of a verdict at the close of the evidence being denied and a verdict being rendered for the adverse party, and its being held upon appeal that the motion should have been granted, and for reasons necessarily precluding the losing party from securing any different result by another trial than the one that would have necessarily followed a correct decision of the motion in the first instance, this court may cause the litigation to be terminated in the court below without a new trial, to that end remanding the cause with directions to grant the motion previously denied, and to render judgment accordingly.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by Priscilla Hay against the city of Baraboo. Judgment for plaintiff, and defendant appeals. Reversed.

Appeal from the circuit court of Sauk county. Action to recover compensation for personal injuries alleged to have been sustained by reason of an insufficient sidewalk in the defendant city.

Omitting formal matters, the circumstances relied upon for a cause of action, as alleged, were these: October 22, 1902, about 7 o'clock p. m., plaintiff while traveling along the sidewalk on the westerly side of Grove street in the defendant city, in the exercise of ordinary care, at a point specifically mentioned, fell and was greatly injured by reason of the insufficiency and want of repair of such walk. The insufficiency of the walk consisted of a hole therein produced by the removal of one of the decking boards about eight inches wide and four feet long. Without fault on her part, plaintiff stepped into such hole and was thereby thrown down and her right leg between the knee and ankle injured, her body and her right arm bruised, and she was otherwise severely injured, to her damage in the sum of $5,000. The defendant, through its officers having charge of such matters knew of such defective condition for several months prior to the injury. October 31, 1902, plaintiff caused written notice of the injury to be personally served on the mayor and clerk of the city, stating the time and place of the injury, the insufficiency and want of repair causing the same, and that she claimed satisfaction for her injury. January 28, 1903, plaintiff caused a written notice of her claim to be served personally on the mayor and clerk of the defendant, and to be filed with the city clerk stating the time and place of the injury and describing the insufficiency which caused it, and the amount of damages sustained. March 26, 1903, her claim was duly rejected by the city and two days thereafter notice of such rejection was served upon plaintiff. April 14th thereafter plaintiff duly appealed to the circuit court from such disallowance, giving notice and filing a bond as required by law in such cases. The damages claimed were for $5,000.

The defendant answered putting in issue the allegations to the effect that section 1339, Rev. St. 1898, respecting the service of written notice of the injury was complied with, and alleging as follows: No statement in writing was presented to the common council in accordance with section 26, subc. 12, c. 21, p. 77, Laws 1882, sections 6-8, subc. 5, c. 21, pp. 43, 44, Laws 1882, regulating the subject of disallowance of such claims by the defendant and appeals therefrom were not complied with,...