Zimmer v. Schmitt

• Decision Date: 21 May 1918
• Parties: ZIMMER v. SCHMITT.
• Court: Wisconsin Supreme Court

167 Wis. 430

167 N.W. 739

ZIMMER

v.SCHMITT.

Supreme Court of Wisconsin.

May 21, 1918.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John P. Zimmer against Edwin O. Schmitt. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for damages. Plaintiff is an automobile owner living in the city of Milwaukee. Some time during the early part of January the defendant, a plumber, under permit issued by the public authorities, dug a trench from the north line of Knapp street extending south 6 feet; the trench being 2 feet wide and 8 feet deep. After making a sewer connection the defendant filled the trench, using water and clay which had been removed from the excavation. The permit provided that the defendant should do the work promptly, and upon completion of the work “at once restore the said street to as good condition as it was at the time said opening was made”; that in refilling the trench the earth must be placed therein in layers of not more than 6 inches in depth, and each layer must be thoroughly tamped and rammed to prevent aftersettlement; “no frozen materials will be permitted to be replaced, nor will ashes be allowed to be used for back filling; and that in the performance of the work the licensee shall comply with the general ordinances of the city of Milwaukee.” In filling the trench the defendant put in a layer of ground, then turned running water into the trench, and then tamped it, put in more clay and used more water until the trench was filled to the top. On account of the winter weather the trench was not filled permanently, and as the weather moderated the filling in the trench would sink, so that from time to time refilling and leveling became necessary. On March 18, 1915, the plaintiff was driving east on Knapp street in an electric automobile, and as he passed over the place in question the wheel of the auto fell into the trench and the car swerved to the left and skidded, breaking a wheel. The plaintiff testified that he saw the earth in the street as he approached the point in question, and that he did not slacken nor attempt to slacken the speed of the car.

Plaintiff brought suit in the civil court of Milwaukee county against the defendant and the city of Milwaukee. A jury was waived, and, omitting formal matters, the court found that the excavation was made at the time and place claimed, under a permit granted by the city of Milwaukee for the purpose of making a trench and sewer connection; “that on account of the weather conditions it was not permanently refilled and replaced, but that it was temporarily refilled and the surface replaced from time to time as weather conditions and public travel permitted and demanded; that said street was out of repair by virtue of the condition of said ditch at the time of the accident; that the defendant Edwin O. Schmitt was not guilty of negligence;” that the city of Milwaukee had no notice of the defective condition of the street; that plaintiff's automobile was damaged as claimed; that the damage to said automobile was not occasioned by the negligence or carelessness of either of the defendants; and that plaintiff was not guilty of contributory negligence. Judgment was entered accordingly, and plaintiff appealed to the circuit court. No finding having been made by the civil court as to the amount of damages, it was stipulated that...