Zoellner v. City of Fond Du Lac

• Citation: 133 N.W. 35,147 Wis. 300
• Parties: ZOELLNER v. CITY OF FOND DU LAC.
• Decision Date: 14 November 1911
• Court: Wisconsin Supreme Court

147 Wis. 300

133 N.W. 35

ZOELLNER

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by William Zoellner against the City of Fond du Lac. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for personal injuries sustained by reason of a defect in a sidewalk. On the 8th day of May, 1909, at about 6:30 in the evening, the plaintiff, accompanied by his daughter, was walking home from his work along the sidewalk on the south side of Maine street in the defendant city, carrying some carpenter tools in his hands. When at a point on said sidewalk about 12 feet north of the north line of Twelfth street, one or more of the boards, when stepped upon, tipped up, causing the plaintiff to catch his foot thereon, and to fall with great violence upon the sidewalk. It is claimed the stringers of the walk, which ran lengthwise, had become so rotten that six of the boards at the place of the injury were loose and entirely unfastened, and that the boards themselves were more or less decayed. Notice of the injury was served upon one G. F. McEntee, claimed to be the sidewalk superintendent of the defendant city. The jury, by special verdict, found (1) that the boards of the sidewalk at the place where plaintiff fell were loose from the stringers; (2) that such loose condition of the boards rendered the walk at the place unsafe for public use; (3) that such loose condition of the boards was the proximate cause of plaintiff's injuries; (4) that the city authorities in the exercise of reasonable diligence ought to have repaired the walk prior to the time of plaintiff's fall; (5) that there was no want of ordinary care on the part of plaintiff that contributed to produce his injuries; and (6) that plaintiff was damaged in the sum of $900. From a judgment entered thereon in favor of the plaintiff, the defendant appealed.L. E. Lurvey, for appellant.

R. L. Morse, for respondent.

VINJE, J. (after stating the facts as above).

The defendant claims (1) that the notice of injury was not served upon the proper officer of the city; (2) that plaintiff was guilty of contributory negligence as a matter of law; (3) that the court erred in its charge to the jury relative to the question of contributory negligence; and (4) that the damages are excessive.

[1] It appears that the notice of injury was served upon one G. F. McEntee. Plaintiff claims that at the time of the service of notice upon him he was the sidewalk superintendent of the city, while the defendant asserts there was no such officer. The defendant city was organized under a special charter, and section 6b of chapter 18 thereof, added in 1889, provides that no action shall lie against the city on account of an injury or damage to any person or property occurring by reason of the insufficiency or want of repair of any sidewalk in said city, unless a notice in writing shall have first been given to the street commissioner or sidewalk superintendent of the city, or an alderman of the ward within which the injury or damage shall have occurred, within 30 days from the time such injury or damage shall have happened. In 1904, pursuant to the provisions of section 926, Stats., the city of Fond du Lac adopted sections 925--23 to 925--30, inclusive, except section 925--29, sections 925--78 to 925--94, inclusive, and sections 925--201 to 925--207, inclusive, in lieu of similar provisions of its special charter. But in Block v. Fond du Lac, 141 Wis. 85, 123 N. W. 654, it was held that, notwithstanding the adoption of sections 925--201 to 925--207, relating to the construction and repair of sidewalks, sections 6b, c. 18, remained in force. Hence, if Mr. McEntee was not sidewalk superintendent of the city within the meaning of section 6b, there was no proper service upon the city.

[2] The result of the adoption of the sections above referred to was to place in the board of public works many of the most important duties which, under the special charter, had devolved upon the sidewalk superintendent. Nevertheless the city, in April, 1908, adopted a resolution that the board of public works be authorized to employ a sidewalk inspector at a salary not to exceed $2 per day, and on the 2d of February, 1909, it adopted an ordinance fixing the salaries of certain city officers, and, among others, that of the sidewalk superintendent at $600. On May 4, 1908, Mr. McEntee was employed by the board of public works, but for no definite term, took no oath of office, gave no bond, and was paid at the rate of $2 per day. He inspected sidewalks, made reports to the board of public works and to the common council, served notices to repair, etc., upon property owners, and signed his reports and notices as sidewalk superintendent. His whole duties related solely to the construction, repair, and inspection of sidewalks. Sometimes, as a matter of accommodation, he would report defects in streets to the street commissioner, and the latter would occasionally report sidewalk defects to him. In view of the duties he performed and the fact that the city recognized him as sidewalk superintendent, we think he was such within the meaning of section 6b, and that service upon him constituted service upon the city. It is not necessary that service should be made upon an officer of a city. The Legislature may properly designate service to be made upon an agent or employé thereof. So, even if it be conceded that by the adoption of the general charter provisions the sidewalk superintendent was reduced from an officer of the city to a...