Hall v. City of Fond du Lac

Cole, J. At the close of the plaintiff’s case the defendant moved for a nonsuit, for the reason that there was no evidence to warrant the jury in finding that the officers or agents of the city had notice of the defect in the sidewalk, and because the proof did not show that the injuries complained of were the direct result or consequence of the fall. One error assigned is the overruling of this motion. We think the non-suit was rightly denied on both grounds. It is admitted that the plaintiff fell through the walk on the evening of the 18th of September, 1873. There is positive testimony that the defect in the walk had existed for some time before this accident. The witness Christie, who measured and made a diagram of the hole the morning after the accident, says that he saw the hole “ some three months before the measurement.” Charles Burgess had his attention called to the defect “some time about the 1st of June, 1873.” Eeuben Hall had noticed the hole “ two or three months before the plaintiff' was hurt.” The sidewalk was on the north side of Division street, one of the principal thoroughfares of the city; and the jury might well have found, upon this evidence, that the defect was of such a dangerous character, and had existed for such a length of time, that the city authorities had knowledge of it, or that knowledge on their part should be presumed. There was evidence which tended to prove that the defect was the result of a faulty or improper construction of the walk in the first instance. The walk was nearly two feet above the ground, and there was testimony that the hole therein was caused by the [280] decay of tbe edge of a plank wbicb was “ wany and "sappy ” wben laid. A walk of suck material, tbus constructed, on one of tbe principal streets of a city, cannot remain in an unsafe and dangerous condition for weeks or months, without the law charging the city authorities with notice of the defect. It is the plain legal duty of the city to properly construct its sidewalks, and keep them in a good condition for the safe and convenient use of the public. This duty is not performed by allowing the walks to remain out of repair for months. There was ample if not overwhelming testimony that the plaintiff sustained a serious injury in consequence of falling through the hole in the walk. This is all we deem it necessary to say on that exception. Another error is assigned on the refusal of the court to give the instructions asked by the defendant. The record shows that the first two requests were given. The third was as follows: “If the jury find that the plaintiff was predisposed to disease, which condition would naturally grow or develop into a fixed condition of sickness or disease, and stepping through the hole (if the jury find that she did) only hastened the result or the predisposition, or only developed it into disease, then the plaintiff is only entitled to recover such damages as resulted from the injuries to her leg.” Without dwelling upon the language of this instruction, or its correctness as a proposition of law, it is sufficient to say, in vindication of the ruling of the court on this point, that there was really no evidence in the case to which it was applicable. There is no testimony whatever that the plaintiff was predisposed to disease of any bind, but on the contrary all the evidence relating to the matter shows that prior to the accident she was a strong, robust girl, capable of earning good wages. The only basis for the instruction was the fanciful theory or speculation of a medical witness, who heard the testimony of the plaintiff on cross examination, and the aunt’s testimony, and who also heard the hypothetical questions put to two [281] other physicians examined on tbe trial. From tbis evidence, without any medical examination of the plaintiff, and knowing nothing about her health or condition before she was hurt, the witness had an idea that the plaintiff might have suffered unconsciously from some previous uterine disease or diffculty, or was predisposed to such disease, and that the accident which she received acted as an exciting cause to develop it. Experience has shown that medical testimony is not always reliable, any more than other testimony. And we think it would be quite unsafe to submit to a jury such speculations and conjectures as were indulged in by this witness, as a basis upon which to find a verdict, especially in view of the direct and positive testimony that the plaintiff had a vigorous constitution and enjoyed firm health prior to the injury. Exceptions were taken to every paragraph in the charge, amounting in all to more than forty, although only four or five of these exceptions are relied on here. The practice of taking exceptions in that manner to a charge, cannot be too strongly condemned; and perhaps they ought to be treated as a general exception, unavailing for any purpose. University of Notre Dame du Lac v. Shanks, 40 Wis., 352. However that may be, we do not think the charge is fairly open to the criticisms passed upon it, namely, as being a “ series of continuous blunders.” There are obviously verbal inaccuracies in one or two parts of the charge; but it is impossible that they could have misled the jury or have prejudiced the defendant. For example, the jury were told, among other things, that if the plaintiff knew the hole was there in the walk, and purposely and carelessly stepped into it, and received the injury, she could not recover. It is plain that the word and ” is used for “ or ” in this sentence, and that what the learned judge meant to say was, that there could be no recovery if the plaintiff, knowing of the existence of the hole, negligently or intentionally stepped into it. The question of [282] contributory negligence, with, all other questions, seems to have been fairly submitted to the jury. The verdict was for $3,258, which it is claimed is excessive. The testimdny- satisfactorily shows that the injury was of a very serious if not of a permanent character. It will probably render the plaintiff unable to do any continuous hard work for years, if it does not disable her for life. -Under the circumstances, we do not feel inclined to disturb the judgment on the ground of excessive damages. By the Court. — The judgment of the circuit court is affirmed.