Studley v. City of Oshkosh

LyoN, J. It is understood that the learned circuit judge held the complaint insufficient on the ground that it contains no proper averment of notice to the city or its officers of the alleged defect in the sidewalk. The complaint was drawn with reference to the following section in the city charter: “ The city shall not be liable to or for any damages arising or growing out of any sidewalks, streets, drains, sewers, gutters, ditches or bridges, in said city, being in a defective or dangerous condition, or out of repair, unless it be shown that, [382] previous to tbe happening of the same, one of the aldermen of said ward in which the same is located, had knowledge thereof ; and no knowledge of such condition shall be presumed unless the defect out of which, the same occurred, existed three weeks before such damages occurred. Provided,, however, that nothing herein contained shall be so construed as to mean that knowledge is to be presumed because such three weeks had elapsed.” Laws of 1877, p. 269, sec. 28. The question to be determined is, whether the complaint states a cause of action under the above section. Excluding the proviso, the meaning of the section is plain. It relieves the city from liability in cases like this, unless an alderman of the ward in which the defective sidewalk is situated, had previous knowledge of the defect, and negatives any presumption of such knowledge unless the defect had continued three weeks before the injury caused by it was inflicted. It is apparent that the word knowledge is used in the section as the equivalent of notice. The unavoidable inference from these provisions is, that after the defect has existed three weeks, notice thereof to the proper alderman shall, or at least may, be presumed. It is more difficult to ascertain the true construction and effect of the proviso. Taken literally, it would seem repugnant to the purview or body of the section; yet it should not be held repugnant if the language admits a construction which will give effect to the whole section. “The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished and stand, under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy.” 1 Kent’s Com. (12th ed.), 463, note i. One office of a proviso is to exclude some possible ground of misinterpretation of the act. Minis v. The United States, 15 Peters, 423. We think the proviso under consideration was inserted in the section for such a purpose. The languageof the section preceding the proviso being [383] general, there may have been reason to apprehend that the courts would hold under it that after any defect in the sidewalk or street had existed three weeks — whatever the -character of the defect,— notice thereof to the proper officer should be conclusively presumed. Hence the proviso may have been added to prevent that construction, and to leave the city free to show that the defect was of such a character that notice of it ought not to be conclusively presumed, and the city held liable, although such defect may have existed more than three weeks. Such might be the case were'the defect latent or hidden ■— one which the exercise of reasonable care and attention by the proper city officers might not disclose. But we cannot think that the legislature intended to relieve the city of Oshkosh from all liability for injuries caused by defective streets therein, unless notice in fact of such defects be given to an alderman of the proper ward, in a case in which the defect is patent and readily discoverable upon due official examination and inspection of the streets. In such a case, we think the legislature intended, in the absence of actual notice to the alderman, to give the city three weeks in which to discover and remove the defect, and, failing to do so in that time, to hold the city liable for the consequences of its neglect. Upon full consideration of the whole section, it seems to us that the legislature intended thereby to change or qualify the then existing law only in these two particulars: 1. By designating an officer who must have notice of the defect before the city can be held liable for injuries caused by it; and 2. By fixing a time before which no presumption of notice to such officer can arise, and after which such presumption does arise. In all other respects we think the law remains as it was before the section was enacted. Of course, a good complaint under this section of the charter must allege facts showing the liabiltv of the city for the injuries complained of. The complaint in this action, in addition to the usual averments in complaints in such actions brought under the general law, alleges a fact, to wit, the con [384] tinuance of the defect in the sidewalk for more than three weeks preceding the accident, which, under our construction of the charter, shows prima faoie that the city is liable. If there are circumstances in the case which relieve it from such liability, that is matter of defense. We conclude, therefore, that the complaint states a cause of action, and that the court erred in ruling that it did not. By the Gourt. — Judgment reversed, and cause remanded for a new trial. ?