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.

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

L. E. Lurvey, for appellant. R. L. Morse, reports and notices as sidewalk superinfor 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.

tendent. 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 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

[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 dam-knowledge of the defective condition of the age 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.

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 reason

[2] The result of the adoption of the sec-able excuse for forgetfulness; and that, when tions 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

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 Baraboo, 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; | ant. It defined ordinary care, and then said: Wolf v. Chicago & N. W. R. Co., 131 Wis. 335, 111 N. W. 514.

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.

"If the plaintiff had knowledge of the existence of the defect claimed previous to the [4] In the instant case, plaintiff testified accident, such circumstance requires some that he knew of loose boards in the walk, evidence, direct or circumstantial, reasonbut that he did not have that fact in mind ably sufficient to overcome the presumption when he was walking along at the time he of negligence raised by such knowledge, eiwas injured. He offers no affirmative oral ther by showing that plaintiff was proceedexcuse or explanation why he did not. The ing upon the walk, paying attention to the question therefore is, Are there any explana- necessity of avoiding the danger, or that he tory circumstances appearing in the evidence forgot the existence of it, and that his forshowing a reasonable excuse for forgetful-getfulness under the circumstances was conness? Plaintiff was a carpenter by trade, sistent with ordinary care." Defendant 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.

[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.

MARCOTT v. MINNEAPOLIS, ST. P. &
S. S. M. RY. CO.

(Supreme Court of Wisconsin. Oct. 24, 1911.)
1. CARRIERS (§ 290*) - CARRIAGE OF PASSEN-
GERS-PERSONAL INJURIES-TEMPERATURE OF
CARS.

passenger on account of insufficient heating of To make a carrier liable for injury to a à coach, it must appear that the condition was negligently permitted to exist, in addition to there being no liability unless the carrier has the fact that a dangerous condition existed; reason to foresee injury to a healthy person by reason of the atmospheric condition of the car. [Ed. Note.-For other cases, see Carriers, Dec. Dig. § 290.*]

2. CARRIERS (§ 416*)-CARRIAGE OF PASSENGERS-TEMPERATURE OF CARS-EVIDENCE.

Evidence held insufficient to show that a Pullman car through insufficient heat. railway passenger contracted pneumonia in a

[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 416.*]

[5] Upon the question of contributory negligence, the court instructed the jury that the burden of proof was upon the defend

Appeal from Circuit Court, Marinette Coun- | therefore leaves the plaintiff to his proof in ty; Samuel D. Hastings, Judge. that behalf.

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 Escanaba, 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 sald 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

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.

should be 'Yes,' then answer this: Was said "(3) If your answer to the second question 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 in said car? Answer: Yes. protected as passengers were in their berths

fourth questions should be 'Yes,' then answer

“(5) If your answers to the third and

and prudence in charge of said car, as the this: Ought a man of ordinary intelligence that by permitting the atmosphere to become porter was, to have reasonably anticipated

health of some healthy person would be inas cold and damp as it was in said car, the jured thereby while sleeping in his or her

berth? Answer: No.

"(6) If you should answer the second, third, Did the temperature of said car fall below and fourth questions 'Yes,' then answer this:

to make it dangerous to the health of plaintiff and other passengers then upon said train, because of said failure to keep its said 60 degrees after the plaintiff retired and betrain and cars properly heated; that before he awakened in the chill?

cause of defendant's such failure in that re

Yes.

Answer:

and fourth questions 'Yes,' then answer this: was the chill in which the plaintiff awoke a pneumonic chill? Answer: Yes.

"(7) If you should answer the second, third,

gard 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 "(8) If your answer to the second, third, plaintiff became and was much distressed, and fourth questions should be 'Yes,' then and suffered great pain on the way; that answer this: At what amount do you assess plaintiff has ever since been, and now is, an the plaintiff's damage which resulted directinvalid because of said disease thus contract-y and proximately from the disease which ed; that plaintiff's lungs have become and he contracted while asleep in said car? Anare seriously and permanently diseased, and swer: $15,000." plaintiff is, as a result of the disease thus Upon motions duly made, the court changcontracted, sick, sore, and permanently dis-ed the answers to question 2, 3, and 4 from abled; that plaintiff has suffered and still "Yes" to "No," and awarded judgment upcontinues to suffer great pain bodily, and on the verdict so amended in favor of the defendant. Plaintiff appealed. 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 severe 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

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

VINJE, 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

chilled, owing to the cold and damp con- the engine was cut off. He said the car dition of the atmosphere in the car; that seemed cold, but he called for no additional the condition of the atmosphere was such cover. On cross-examination, he testified as to render it dangerous for healthy per- the car was comfortable when he awoke, sons to sleep in it, protected as passengers and later, on direct examination, he testiwere in their berths. But they further fied that he then felt all right; that he went found that a man of ordinary intelligence to sleep almost immediately; that he thought and prudence, in charge of the car as the he slept about an hour or two, but could porter was, ought not reasonably to have not tell just how long; that he then woke anticipated that such cold and damp con- up with a chill; that it was the chill that dition of the atmosphere would injure the woke him up. He was so cold that he shook, health of a healthy person sleeping in his and the car seemed cold to him. He asked berth. There is nothing inconsistent in the porter for heat, and was told the enthese findings. They found that a danger- gine was disconnected, and that no more ous condition of the atmosphere did in fact heat could be given him just then. He had exist, but that defendant had no reason to a high fever and a headache. He was conanticipate or know that it was dangerous.scious that some time later the engine came To sustain liability it is not enough to show back and coupled onto the train. He said that defendant permitted a dangerous con- it seemed to him quite a while afterwards. dition to exist. It must also be shown that But the uncontradicted evidence of the trainit was negligently permitted to exist. If men, including the engineer, is that, not to defendant had no reason to anticipate any exceed 15 minutes after they arrived at the injury to any healthy person by reason of wreck near Ladysmith, the engine of the the atmospheric condition maintained, it passenger train was uncoupled, and it prowas not negligent. Green v. Ashland Water ceeded to assist in removing the wrecked Co., 101 Wis. 258, 77 N. W. 722, 43 L. R. A. engine; that it was engaged in that work 117, 70 Am. St. Rep. 911. The verdict re- not to exceed 50 minutes (some witnesses turned by the jury, therefore, entitled the place it at from 35 to 40 minutes, and the defendant to a dismissal of the action upon outside limit of all the testimony is 50 minthe merits. utes); that the engine was then brought back and attached to the passenger train, and the heat connected as usual.

It may therefore be said to be a verity in the case, that from the time when plaintiff first awoke, as they first approached the wreck, to the time of the pneumonic chill, no more than an interval of from 65 to 70 minutes could have elapsed; and it was during this time, it is claimed that he contracted pneumonia. There is practically an entire absence of evidence to show that the temperature of the car was cold or damp or dangerous to sleeping persons during this night. At Barron 30 miles west of Ladysmith, the maximum temperature on the 12th was 76 degrees, the minimum 58 degrees. At Prentice, 40 miles east of Ladysmith, the maximum temperature on that day was 75 degrees, the minimum 60 degrees. These two places are the nearest to the place of the wreck showing the exact temperature, and it is fair to assume that the temperature at Ladysmith did not differ very materially from that at Barron and Prentice, being in the same latitude and only from 30 to 40 miles distant, west and east, respectively, from these two places. Mrs. Galloway, a passenger upon the sleeper testified that she was dressed in ordinary spring clothes; that she retired about

[2] Was the trial court warranted in changing the answers to questions 2, 3, and 4 from "Yes" to "No"? As to question 2, it is sufficient to say that the utmost plaintiff can claim from any testimony in the case, including that of his own medical experts, is that the atmospheric condition in the car was such that it might produce pneumonia. None of the experts testified that plaintiff's pneumonia was, in their opinion, caused by such condition, or that it was reasonably certain that such condition would probably produce pneumonia. More over. the consensus of all the medical testimony, and of common observation and experience, is that it would require more than three or four hours from the first exposure to fully develop a pneumonic chill, such as the plaintiff had when he awoke the second time. The reasons for changing the answer to this question will appear more fully in the discussion relative to questions 3 and 4. These two questions can be treated together. Plaintiff, at the time of the alleged exposure, was 42 years of age, in good health, and weighed about 150 pounds. He claims that he felt first-rate when he entered the car at Minneapolis; that he noticed nothing unusual about the temperature of the car at the time he entered; that he rode for a while in the smoking compartment with 10 or half past 10 in the evening, undressed, the window open, but was not subjected and put on an ordinary sleeping gown; that to any draft, and did not feel uncomfort- before she retired she used no wraps or able. About 9:30 in the evening he retired, coats; that she was comfortable, noted nothand went to sleep about 10 o'clock. Later ing abnormal about the temperature of the he was awakened by a noise like that of a car; and that after she retired she used

On the evening of the 11th plaintiff took a Turkish bath at Minneapolis, and remained in the bathrooms all night. During the day of the 12th he went to different offices and mills in the city of Minneapolis. There 1170.*]