King v. City of Oshkosh

Lyoít, J. 1. The case is a very clear one, both on the law and facts. The jury found, upon sufficient testimony, that the hydrant upon which the plaintiff stumbled and was injured was a structure dangerous to travelers on the street in the night time, while exercising ordinary care, and that it had been allowed to remain there, in the same condition, about four years. In other words, the jury found that the city had suffered a dangerous structure •— a nuisance — to remain in its principal thoroughfare all that time. They also found that the injuries complained of were caused thereby, and that when injured the plaintiff was exercising reasonable and proper care. Under these facts, there can be no doubt of the liability of the city. The case of Hayes v. Oshkosh, 33 Wis. 314, is cited by counsel for the city as authority for the proposition that the city is not liable in this action. The rule of that case is not applicable. It was there held that the maxim, re-spondeat superior, did not apply, and hence the city was not liable for the negligent or wrongful act of its officer or employee. Many cases have since been determined by this [520] court in which the same ruling has been made. Among these are Wallace v. Menasha, 48 Wis. 79; Schultz v. Milwaukee, 49 Wis. 254; Little v. Madison, 49 Wis. 605. In the present casé the maxim is applicable, beyond all question. If its officers unnecessarily suffer a dangerous structure or object to remain upon its streets, after notice of its existence and time to remove it, the city is liable for an injury caused thereby to one in the exercise of proper care. It has been so held by this court in numerous cases, and the same doctrine is laid down in some of the cases above cited. These conditions all exist in this case. See Adams v. Oshkosh, 71 Wis. 49; Mulcairns v. Janesville, 67 Wis. 24. 2. The testimony tends to show that plaintiff’s injuries are quite serious, resulting in considerable suffering, expense, and loss of time; also, that his health and ability to earn money are thereby .impaired, and that to some extent such injuries may be permanent. Such being the proof, we cannot properly say, as matter of law, that the damages assessed by the jury are excessive. 3. The court admitted testimony of the physical condition of the plaintiff before and after the. injury, and that he complained of pain to his physician and others. There is nothing in the testimony tending to show that such complaints were made for a sinister purpose. Without stating this testimony in detail, it must suffice to say that we think it was all admissible within the rule of Bridge v. Oshkosh, 71 Wis. 363. 4. For the purpose of showing that the plaintiff was not hurt so badly as he claimed, or that his injuries were caused in part by his own conduct after he stumbled upon the hydrant, testimony was introduced tending to show that a day or two afterwards ho engaged in a contest of personal strength or agility with others, called “stretching.” One of these stretchers was called on behalf of the city as a witness, and was asked: “ What effect did the stretching that [521] you did there have upon you?” The court sustained an objection to this question. The offered testimony was clearly inadmissible. The proposed testimony did not tend to prove or disprove- any issue in the case. It could only have raised an immaterial side issue. The true inquiry was, Iiow did the stretching affect the plaintiff? not, How did it affect the witness? 'We think the ruling was correct. This disposes of all the alleged errors adversely to the defendant. By the Court.— The judgment of the circuit court is affirmed.