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we see no escape from the conclusion that the title passed, because the appellant waived its right to the cash payment and also failed to seasonably reclaim the typewriter. Some other points are raised by appellant, which we have considered and do not regard well made, and we do not regard them of sufficient gravity to require special treatment. We find no prejudicial error in the record, and therefore the judgment must be affirmed. The judgment is affirmed.

WINJE, J., took no part.

EISENTRAUT v. CORNELIUS et ux. (Supreme Court of Wisconsin. Nov. 14, 1911.) 1 APPEAL AND ERRoR (§ 1203*)—NoTICE of TRIAL–NEw NoTICE AFTER REMITTITUR. St. 1898, § 3072, as amended by Laws 1905, c. 365, provides, where the Supreme Court orders a new trial, or further proceedings below, the record shall be transmitted and proceedings had thereon within one year from such order, or in default the action shall be dismissed, and that the losing party, when a judgment in his favor is reversed on appeal, shall procure the record to be remitted, and bring the cause to trial within one year after such reversal. A "g ment for plaintiff was reversed on February 18, 1908, with directions to bring in parties and frame issues, and on February 13, 1909, the cause was remitted to the circuit court, and notice of remittitur was served the same day, and three days later the plaintiff filed a petition to amend and bring in additional parties, and order to show cause was made returnable March 8th. Held, that the motion to dismiss the cause was properly granted. [Ed. Note:–For other cases, see Appeal and Error, Cent Dig. §§ 4687,4688; Dec. Dig. § 1203.*] 2. ContinuANCE (§ 40*)—TIME For APPLICATION. An application for a continuance may be made for cause before the case is noticed for trial. [Ed. Note.—For other cases, see Continuance, Cent. Dig. $ 124; Dec. Dig. $ 40.*] Appeal from Circuit Court, Clark County; James O'Neill, Judge. Action by Emilie Eisentraut, as administratrix, against Charles Cornelius and wife. From a judgment dismissing the cause, plaintiff appeals. Affirmed. See, also, 134 Wis. 532, 115 N. W. 142, 126 Am. St. Rep. 1027.

F. E. Withrow (Bunge & Bosshard and Arthur A. Mueller, of counsel), for appellant. Sturdevant & Farr, for respondents.

TIMLIN, J. [1] On February 18, 1908, this court reversed a judgment in favor of the plaintiff in this case, and remanded the same, with directions that the court proceed to bring in all the parties necessary to a complete determination or settlement of the questions involved, frame issues, and reopen the case for the reception of such other material evidence as might be produced, and

which was not introduced at the former trial, and thereafter to make its findings of fact. Eisentraut v. Cornelius, 134 Wis. 532, 115 N. W. 142, 126 Am. St. Rep. 1027. The case remained in the files of this court until February 13, 1909, when it was remanded to the circuit court of Clark county. Notice of remittitur was served February 13, 1909. On February 16, 1909, plaintiff filed a petition in the circuit court to amend the summons and complaint and bring in additional parties as directed by this court, and the court made an order to show cause thereon returnable March 8, 1900. The defendants thereupon petitioned the circuit court to dismiss the cause, for the reason that the action had not been continued for cause or brought to trial within one year after its reversal, as provided by section 3072, Stats. 1898. That statute, as amended by chapter 365, Laws of 1905, provides as follows: “In every case in error or on appeal in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had thereon within one year from the date of such order in the Supreme Court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the Supreme Court on the appeal of the opposing party to pay the clerk's fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he shall fail so to do, his action shall be dismissed.” The first sentence seems to impose the duty of procuring the transmission to the Court below on the plaintiff, because the result of failure is that the action shall be dismissed, unless, etc. The second sentence appears to impose this duty on the losing party, who may or may not be the plaintiff, and for failure “his action shall be dismissed.” In the instant case, however, the plaintiff and the losing party are the same. The original judgment in her favor was reversed by the Supreme Court on the appeal of the opposing party, and the same seems to be within the letter of the statute. That the appellant made a belated attempt to bring in new parties, as required, cannot avail her in the face of this statute, which requires either that there be a continuance for cause, or that the action be brought to trial, and in default of both that the action be dismissed. The statute is quite drastic, but, so long as the Legislature, acting within its power, sees fit to impose such laws, it is our duty to obey and enforce them. State v. Johnson,

TIONS.

care.

105 Wis. 90, 80 N. W. 1104; Miami Bank | knowledge, but which had escaped his mind at 5. Goldberg, 126 Wis. 432, 105 N. W. 816; the time of the injury, whether the explanatory Sutton v. Rallway Co., 114 Wis. 647, 91 N. circumstances were such as to excuse such for

getfulness held for the jury. W. 121.

[Ed. Note.-For other cases, see Municipal [2] The appellant suggests that the cause Corporations, Dec. Dig. $ 821.*] could not be noticed for trial before the ad- 5. MUNICIPAL CORPORATIONS (8 822*)—DEFECditional parties were brought in, and could TIVE SIDEWALKS-INJURIES TO PEDESTRIAN not be continued for cause until after it was

CONTRIBUTORY NEGLIGENCE - INSTRUCnoticed for trial. We consider these diffi

In an action for injuries on a defective culties imaginary. There is no such obstacle sidewalk, the court defined ordinary care, and in the way of an application for a continu- then stated that as plaintiff had knowledge of ance. Sutton v. Wegner, 72 Wis. 294, 39 n. the defect before the accident that circumstance

required some evidence, direct or circumstantial, W. 775; Blair v. Cary, 9 Wis. 543.

reasonably sufficient to overcome the presumpJudgment affirmed.

tion of negligence raised by such knowledge, either by showing that plaintiff was proceeding on the walk paying attention to the necessity of avoiding the danger, or that he forgot the

existence of it, and that his forgetfulness under ZOELLNER V. CITY OF FOND DU LAC. the circumstances was consistent with ordinary

Held not error, as calculated to mislead (Supreme Court of Wisconsin. Nov. 14, 1911.) the jury, to infer that the burden of proof was 1. MUNICIPAL CORPORATIONS (8 812*)-INJU- on defendant to show excusable forgetfulness

BIES TO PEDESTRIANS-DEFECTIVE SIDEWALK on the part of plaintiff.
-NOTICE OF INJUBY-SIDEWALK SUPERIN [Ed. Note.-For other cases, see Municipal
TENDENT-CHARTER PROVISIONS.

Corporations, Dec. Dig. $ 822.*]
Fond du Lac City Charter (Laws 1883, c.
152) c. 18, § 6b, as added by Laws 1889, c. 435,

6. DAMAGES (8 132*) — EXCESSIVENESS-PER

SONAL INJURIES. $4, requiring notice of injuries from defective sidewalks to be given to the street commissioner

Plaintiff, at the time of injury by a defecor sidewalk superintendent, or to an alderman tive city sidewalk, was 71 years old and earnof the ward wherein the injury occurred, within ed $2.50 a day. He suffered a hole cut through

his face into his mouth, Two teeth were de30 days thereafter, remained in force, notwithstanding the city's adoption, in 1904, of St. stroyed, and two others injured. He was con1898, $ 925—201 to 925-207, relating to the fined to his bed about two weeks and to his

house for two months. His back received such construction and repair of sidewalks. [Ed. Note. For other cases, see Municipal it over å year after the accident.

an injury that there was rigidity and pain in

Held, that Corporations, Cent. Dig. $8 1696–1707; Dec. an award of $900 was not excessive. Dig. § 812.*)

[Ed. Note.-For other cases, see Damages, 2. MUNICIPAL CORPORATIONS (8 812*)-DEFEC- Cent. Dig. 88 372-385; Dec. Dig. $132.*] TIVE SIDEWALKS-INJURIES-NOTICE-SIDEWALK SUPERINTENDENT.

Appeal from Circuit Court, Fond du Lac Defendant city charter having provided for County; Chester A. Fowler, Judge. notice of injury to persons by defects in city Action by William Zoellner against the sidewalks to be given to the sidewalk superin: City of Fond du Lac. Judgment for plaintendent, the city adopted a resolution that the board of public works, in which authority to tiff, and defendant appeals. Affirmed. build and repair sidewalks was vested by the

Action for personal injuries sustained by city's adoption of St. 1898, &$ 925—201 to 925207, should be authorized to employ a sidewalk reason of a defect in a sidewalk. On the "inspector". at a specified salary, and subse- 8th day of May, 1909, at about 6:30 in the quent to this ordinance an ordinance was adopt- evening, the plaintiff, accompanied by his ed, fixing the salaries of city officers, and, among others, that of "sidewalk superintendent" daughter, was walking home from his work at $600. Held, that a person employed there along the sidewalk on the south side of under at the rate of $2 a day, who inspected Maine street in the defendant city, carrying sidewalks, made reports to the common council, some carpenter tools in his hands. When at served notices to repair, etc., though a mere employé and not an officer of 'the city, was the a point on said sidewalk about 12 feet north sidewalk superintendent within the city's char- of the north line of Twelfth street, one or ter, and that a notice of injury served on him more of the boards, when stepped upon, tipped was a compliance with the charter requirement, up, causing the plaintiff to catch his foot

[Ed. Note.-For other cases, see Municipal thereon, and to fall with great violence upon Corporations, Dec. Dig. $ 812.* ] 3. MUNICIPAL CORPORATIONS ( 821*) – De- the sidewalk. It is claimed the stringers of FECTIVE SIDEWALKS-INJURIES TO PEDESTRI- the walk, which ran lengthwise, had become AN-CONTRIBUTORY NEGLIGENCE.

so rotten that six of the boards at the place That a person injured on a city sidewalk of the injury were loose and entirely unfasused the walk with knowledge of the defect does tened, and that the boards themselves were not conclusively establish contributory negligence.

more or less decayed. Notice of the injury [Ed. Note.-For other cases, see Municipal was served upon one G. F. McEntee, claimed Corporations, Dec. Dig. $ 821.*]

to be the sidewalk superintendent of the 4. MUNICIPAL CORPORATIONS ($ 821*)—DEFEC- defendant city. The jury, by special verdict, TIVE SIDEWALKS-INJURIES TO PEDESTRIAN found (1) that the boards of the sidewalk at - CONTRIBUTORY NEGLIGENCE – QUESTION the place where plaintiff fell were loose FOB JUBY.

In an action for injuries to a pedestriac from the stringers; (2) that such loose conby a defect in a sidewalk, of which he had dition 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.

WINJE, 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 side

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 Gb, 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 mere employé thereof, that fact would not invalidate the service upon him, if he was still the person designated upon whom Service might be made. That the sidewalk superintendent named in section 6b was such person was held in Block y. Fond du Lac, 141 Wis. 85, 123 N. W. 654. [3] It is claimed that the plaintiff had knowledge of the defective condition of the walk prior to the injury, and that no reaSonable excuse was shown for his failure to remember that fact and properly protect himself, and that he was therefore guilty of contributory negligence under the decisions in Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087, and Petrich v. Union, 117 Wis. 46, 93 N. W. 819. In the latter case, the rule is stated thus: “A traveler, knowing of the existence of a defect in a highway, may temporarily forget the existence of such defect, and yet be in the exercise of ordinary care; that it will be presumed, in the absence of evidence to the contrary, that he remembered the defect, and was negligent in falling into it, but that this presumption will give way to explanatory circumstances appearing in the evidence, showing a reasonable excuse for forgetfulness; and that, when such circumstances are shown, the question is one for the jury.” The mere fact that plaintiff knew of the defect in the sidewalk and still used it did not conclusively establish contributory negligence. Simonds v. City of Paraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St. Rep. 895; Salzer v. City of Milwaukee,

New Richmond, 98 Wis. 55, 73 N. W. 322; Wolf v. Chicago & N. W. R. Co., 131 Wis. 335, 111 N. W. 514. [4] In the instant case, plaintiff testified that he knew of loose boards in the walk, but that he did not have that fact in mind when he was walking along at the time he was injured. He offers no affirmative oral excuse or explanation why he did not. The question therefore is, Are there any explanatory circumstances appearing in the evidence showing a reasonable excuse for forgetfulness? Plaintiff was a carpenter by trade, 71 years old. He was going home with his daughter after a day's work, carrying his tools in his hand. He does not recollect that they were conversing at the time. She, however, testifies that they were. But, even if they were not, we think it was a question for the jury to determine whether or not, under the circumstances of this case, he was guilty of negligence in forgetting the existence of loose boards in the walk, and that their finding that he was not cannot be disturbed. He was in company with his daughter, carrying tools in his hands; presumably his attention was somewhat engrossed by what he was doing and by the fact of companionship; and if they were conversing, as the daughter testifies, that would be sufficient to account for his not remembering the condition of the walk. While the explanatory circumstances tending to excuse forgetfulness are not of the strongest character, yet they are sufficient to constitute a question for the jury. Rather slight circumstances have been held sufficient to carry such a question to the jury. Wolf v. C. & N. W. R. Co., 131 Wis. 335, 111 N. W. 514. Moreover, it is not easy to perceive how a recollection of the defect could have enabled him to protect himself from injury, unless they had left the walk entirely, for, even if one preceded the other in the middle of the walk, which was about five feet wide, far enough ahead to prevent the other from stumbling on a board tipped up by him, it does not follow that he might not tip himself. The evidence shows the stringers were very rotten, and that the boards also were decayed. That being so, even if a person walked in the middle, he might break a board, tip it up, and stumble on it. The defects were hidden, and of such a nature that it was practically impossible to securely protect oneself against them short of not using the sidewalk at all. It is otherwise in the case of open, obvious defects, such as the visible ditch or gulley in the case of Petrich v. Union, 117 Wis. 46, 93 N. W. 819, and the hole in the sidewalk in the case of Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087. [5] Upon the question of contributory negligence, the court instructed the jury that the burden of proof was upon the defend

ant. It defined ordinary care, and then said: “If the plaintiff had knowledge of the existence of the defect claimed previous to the accident, such circumstance requires some evidence, direct or circumstantial, reasonably sufficient to overcome the presumption of negligence raised by such knowledge, either by showing that plaintiff was proceeding upon the walk, paying attention to the necessity of avoiding the danger, or that he forgot the existence of it, and that his forgetfulness under the circumstances was consistent with ordinary care.” Defendant claims that this instruction confused the jury as to the burden of proof; that they might infer from it that the burden was upon the defendant to show excusable forgetfulness on the part of plaintiff. Such a construction seems unreasonable, and we do not believe the jury so understood it. The fair import of the construction is that, when it was established that plaintiff knew of the defect before the accident, then the duty devolved upon him to show that he proceeded attentive to the necessity of avoiding danger, or that he forgot the existence of the defect, and that such forgetfulness was, under the circumstances, excusable. [6] Plaintiff was awarded $900 damages. It is claimed the award is excessive. At the time of his injury, he was 71 years old and earning $2.50 per day. There was evidence tending to show that he had a hole cut through his face into his mouth ; two teeth destroyed, and two others injured ; that he was confined to his bed two weeks and to his house two months; and that his back received such an injury that there was rigidity and pain in it over a year after the accident. The amount of damages awarded cannot be held excessive. Judgment affirmed.

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Appeal from Circuit Court, Marinette Coun

ty; Samuel D. Hastings, Judge. Action by Simeon E. Marcott against the

Minneapolis, St. Paul & Sault Ste. Marie

Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint alleges, in substance, that on the 12th day of May, 1906, plaintiff was at the city of Minneapolis, Minn., and, being desirous of returning to his then home in Dscanaba, Mich., he purchased of defendant a passenger ticket, good for transportation over defendant's line of road between said points, and he also purchased of the defendant, a sleeping car ticket entitling him to a berth in a sleeping car then operated by it between Minneapolis and Escanaba; that he boarded defendant's train about 6:30 p.m. of that day, and it became and was the duty of the defendant to provide for the comfort and health of the plaintiff while so aboard defendant's said train and more particularly to protect plaintiff against the inclemency of the weather, and to keep its cars and train comfortably heated; that notwithstanding its said duty in this regard, and while its said train on which plaintiff was a passenger was passing through the state of Wisconsin, the defendant wholly neglected and refused to provide and furnish heat to its said train and cars, or to any of the cars of said train, although the wind was blowing so cold, sleet and snow were falling, and the temperature was so low and the weather so inclement as to make it dangerous to the health of plaintiff and other passengers then upon said train, because of said failure to keep its said train and cars properly heated; that because of defendant's such failure in that regard plaintiff, while on board said train, contracted typhoid pneumonia, and reached Escanaba, Mich., so sick and ailing that he was confined to his bed; that defendant's said train was delayed several hours, and plaintiff became and was much distressed, and suffered great pain on the way; that plaintiff has ever since been, and now is, an invalid because of said disease thus contracted; that plaintiff's lungs have become and are seriously and permanently diseased, and plaintiff is, as a result of the disease thus contracted, sick, sore, and permanently disabled; that plaintiff has suffered and still continues to suffer great pain bodily, and mental pain and anguish, and has been wholly disabled and prevented from earning a livelihood, and has been occasioned and will in the future be occasioned great expense for medicine and physicians, and is informed and believes that he will have to undergo sewere surgical operations to preserve his life and alleviate his sufferings, to his damage in the sum of $50,000.

The answer contains a general denial and an allegation that as to whether the plaintiff was a passenger on one of defendant's trains at the time alleged defendant has no

therefore leaves the plaintiff to his proof in that behalf. The jury returned the following special verdict: “(1) Did the plaintiff become ill with pneumonia while a passenger in one of the defendant's sleepers on the night of May 12, 1906? Answer: Yes. “(2) Was said disease contracted while said plaintiff was sleeping in his berth in said car? Answer: Yes. “(3) If your answer to the second question should be ‘Yes,’ then answer this: Was said disease caused by the plaintiff, while sleeping, becoming chilled by reason of any cold and damp condition of the atmosphere in the Car? Answer: Yes. “(4) If you should answer the third question “Yes,’ then answer this: Was the condition of said atmosphere such as to render it dangerous for healthy persons to sleep in it protected as passengers were in their berths in said car? Answer: Yes. “(5) If your answers to the third and fourth questions should be ‘Yes,’ then answer this: Ought a man of ordinary intelligence and prudence in charge of said car, as the porter was, to have reasonably anticipated that by permitting the atmosphere to become as cold and damp as it was in said car, the health of some healthy person would be injured thereby while sleeping in his or her berth? Answer: No. “(6) If you should answer the second, third, and fourth questions ‘Yes,’ then answer this: Did the temperature of said car fall below 60 degrees after the plaintiff retired and before he awakened in the chill? Answer: Yes. “(7) If you should answer the second, third, and fourth questions ‘Yes,’ then answer this: Was the chill in which the plaintiff awoke a pneumonic chill? Answer: Yes. “(8) If your answer to the second, third, and fourth questions should be ‘Yes,’ then answer this: At what amount do you assess the plaintiff's damage which resulted directly and proximately from the disease which he contracted while asleep in said car? Answer: $15,000.” Upon motions duly made, the court changed the answers to question 2, 3, and 4 from “Yes” to “No,” and awarded judgment upon the verdict so amended in favor of the defendant. Plaintiff appealed.

Martin, Martin & Martin, for appellant. H. O. Fairchild (Alfred H. Bright, of counsel), for respondent.

WINJE, J. (after stating the facts as above). [1] The evidence necessarily took a wide range and is quite voluminous. The questions, however, calling for a decision upon appeal, lie within a narrow compass. The first one is: Was plaintiff entitled to judgment upon the verdict returned by the jury They found that plaintiff contracted

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