Barstow v. City of Berlin

Dixon, O. J. It is understood that the court. below non-suited the plaintiff on the ground that the existence of the hatchway or doorway in the sidewalk, and which, to the knowledge of the officers of the city, it was and for a long time had been the custom to open and use in the manner set forth in the complaint and as described by the witnesses, was not a defect or insufficiency in the highway for which, or for the damages resulting from which, the city could be held responsible. It would be much more difficult for the members of this court, if such were their duty or obligation, to declare the hatchway, which is in the sidewalk of the principal or one of the principal streets of the city of Berlin, and quite frequently used, and when in use left open so as to be very hazardous to foot passengers, not to constitute an insufficiency or dangerous obstruction, than [361] to declare it to be one. But it is not the duty of .this court to say whether the hatchway, existing and used as was shown by the evidence, did or did not per se, or as matter of fact, make the sidewalk insufficient or dangerous at that point; and the foregoing remark has only been ventured for the purpose of showing that this court cannot approve the ruling of the court below in withdrawing the question from the consideration of the jury. "Whether the presence of the hatchway, and the use which was and had been made of it with the knowledge of the city authorities as shown at the trial, rendered the sidewalk insufficient or unsafe, was a question of fact for the jury, and one which, on the evidence, should have been submitted to them. And whether, as argued by counsel for the city, the use which was thus made of the sidewalk, with the acquiescence or assent of the public authorities, by the owner of the adjacent build-ding, was a reasonable, necessary or proper use, and so one not causing a defect or insufficiency in respect of which the city should be held liable in damages, was, under the circumstances, also a question of fact to be determined by the jury, and not one of law to be decided by the circuit court, or by this court. The question of insufficiency or want of repairs, where there is, any evidence reasonably tending to establish the fact, is invariably one for the determination of the jury ;. and the cases are rare where the court will be justified in taking it from them. We lay out of view, therefore, the question whether the city or its officers had notice, at or immediately before the time the plaintiff fell into it, that the hatchway was open, believing, as we do, that the liability of the city depends upon the proper determination, not of this, but of the other question above considered. It is objected that the complaint is bad in not averring that the city had notice of the existence of the hatchway and of the use which the adjoining proprietor was accustomed to make of it. The averment is, that the hatchway had existed in the sidewalk for the period of three years, during all which [362] time the owner bad been accustomed to throw open the door frequently, leaving an open, unguarded, unprotected space in the sidewalk, and making a dangerous hole or opening into the cellar below. The evidence tends to show that the hatchway had existed and been so used for a much longer period, and that the proper officers of the city had knowledge of it. It is not to be questioned, we think, that the existence of an insufficiency for the period of three years raises a conclusive presumption that the authorities of the town or city had notice of it; and when it is averred that the hatchway had existed and been so used for that length of time, that, if it was an insufficiency, is a sufficient averment that the city had notice of it. Something was said in argument respecting the question of contributory negligence, and that possibly the nonsuit might have been properly ordered on that ground ; and the case of Achtenhagen v. Watertown, 18 Wis., 331, was cited as showing that the fact that the plaintiff fell into the hatchway raised a presumption of negligence against him. The cases of Weisenberg v. Appleton, 26 Wis., 56, and Wheeler v. Westport, 30 id., 392, will doubtless suffice to show that the nonsuit ought not to have prevailed on this ground, even if it had been made a point in support of the motion in the court below. But I desire to say of the Achtenhagen case, that, although I prepared the opinion, and thought the decision correct at the time, it has given me much trouble, and I have frequently had great doubts about its correctness when considering the same question since. My fear is, that the court was wrong in saying, as matter of law, that the fact that plaintiff’s intestate fell through the hole raised an inference of negligence against the intestate, which the plaintiff was required to repel or overcome by additional proof in order to establish a cause of action. How could the court say, as matter of law, that the fall of the boy through the hole was not without fault or negligence on his part, or that it was not purely accidental, or under circumstances in which no blame could attach to him ? How could it [363] say, as an inference drawn by the law, that his attention was not suddenly and excusably diverted about the time he reached the hole, and that his fall was not produced in that or in some similar blameless or innocent way ? Negligence, like fraud, is not to be presumed, but must be proved, or at least there must be some facts upon which to base the inference. I agree that the inference might have been upheld upon the facts of that case; but it seems to me 'it was an inference of fact and not of law, and so, one to have been drawn by the jury and not by the court. Like some other cases very peculiar in their circumstances which have arisen, it was at best but a leap in the dark, and I think it was for the jury to take that leap. It was for the jury to guess ; and as they guessed, so the decision must have been. I think the court was wrong in attempting to cut the knot, instead of handing it to the jury to cut. Cole, J. For the purposes of this appeal I do not think it necessary to disturb the Achienhagen case. The cases are quite distinguishable upon the facts bearing upon the question of contributory, negligence. The plaintiff swears that his attention was directed at the moment to the team and wagon across the way, so that he did not see the opening he was approaching. Under such circumstances, no inference of negligence can be drawn from his conduct. By the Court. — Judgment reversed, and a venire da novo awarded.