Cooper v. City of Milwaukee

PiNNEY, J. The question whether the court erred to the prejudice of the defendant city in granting judgment of nonsuit against the plaintiff in favor of the defendant Newton is not before the court for consideration on the appeal of the defendant city from the judgment rendered against it in favor of the plaintiff. There has been no appeal taken from the judgment of nonsuit rendered in favor of the defendant Newton. The court cannot, on the present appeal, enter upon the question whether the separate judgment rendered in favor of the defendant Newton was erroneous or not. In the absence of actual or implied notice of the defective condition of the sidewalk and cover of the coal hole therein, it cannot be maintained that the defendant city would be liable for the injury which the plaintiff received as detailed in the evidence. There is no evidence to sustain the verdict on the ground of actual notice to the city. The material questions fbr consideration arise upon the instructions given to the jury and upon those refused, relating to the question of implied or constructive notice óf the alleged defects in the sidewalk and cover of the coal hole. In order to charge the city with negligence which was proximately the cause of the plaintiff’s injury on the ground of implied notice, the defect in the sidewalk and cover of the coal hole must have been of such a character or of so long a standing that the city must be presumed to have had notice of it. The city was bound to be vigilant in observing defects in the side — 467 — walk's, and in remedying them when they became observable to an officer exercising intelligent and reasonably vigilant supervision over them. The instructions numbered 1 and 2 in the foregoing statement are, we think, in accordance with the well-settled law relating to the liability of the city in actions like the present, and we think that they should have been given to the jury as asked. The city is not an insurer against injuries or accidents occurring on its sidewalks. Its liability is for negligence in not performing its duty to the public in not keeping them in suitable condition and repair. The evidence tended to show that the coal hole and cover had been properly constructed, and there was nothing in the evidence to indicate that the cover of the hole was unfastened, or that, the city officers or authorities knew that it was unfastened prior to the accident. There was no evidence to indicate any defect, or tending to show that the cover was out of its socket for a sufficient length of time to have enabled the proper officers of the city to have discovered its condition and replaced it, although the verdict finds that the cover was actually misplaced before the plaintiff stepped on it; nor is there any evidence to show that the city or any of its officers had reasonable cause to apprehend that it might become displaced by ordinary use. In respect to the question whether the city, its officers or agents, were guilty of negligence which was the proximate cause of the injury, the trial judge charged the jury, in substance, that “if the sidewalk at the point in question was defective, and they found that the city, its officers- and agents, knew, or ought to have known in the exercise of proper care, of the existence of such defective condition, then, in the absence of any evidence tending to show that any steps were ever taken to remedy that defect, they should answer the said interrogatory in the affirmative.” 'This instruction was given without respect to the length of time the defect had existed or its character, — 468 — and was, we think, misleading. The trial judge left it to the jury upon the whole evidence to find whether or not the coal hole was in such a condition that the cover was liable to tip when stepped on at the time of the accident. He left it for the jury to determine the nature and character of the alleged defect which would serve to establish implied notice, without any instructions in point of law on that subject, but told the jury that they must be satisfied from the evidence, to a reasonable certainty, that- the defect had existed so long and so notoriously that the city would, in the exercise of proper care on the part of its officers or agents, have known of it, otherwise the question would have to be answered in the negative. The defect in the sidewalk in the present instance was a secret one, not apparent to ordinary observation; and the nature and character of a defect, notice of which would be imputed to the city within the rule stated, was not pointed out as it should have been by the trial judge, so that the instruction as given really left the jury without any proper guide on the subject, and wholly- failed to meet the just requirements of the case. In this respect the case of Duncan v. Philadelphia, 173 Pa. St. 550, is entirely in point. Besides, we think that it was not, and is not, the duty of a municipality such as the defendant city, as stated in the second instruction above requested, to examine covers to coal-hole openings such as the one in question here, to ascertain if the covers to the same are unfastened, unless there is something apparent on the surface, or otherwise brought to their attention, to lead its proper officers to believe that the same are loose and likely to become misplaced. These requests were denied by the court, and nothing of a similar character or import was given in their stead. Upon the question of notice it seems that the rule is that the facts must be such as to lead to the inference that the proper -officers of the town whose duty it is to attend to municipal — 469 — affairs did actually -know of the existence of the defect, or with proper diligence and care might have known it. Hanscom v. Boston, 141 Mass. 242, 246. In the case last cited the court said: “ It has never yet been held to be the duty of the officers of the city to examine from time to time covers of coal holes which are properly constructed and apparently secure, to see whether the occupants of .the cellars under the coal holes keep the covers fastened on the inside. In all the decided cases under former statutes, if the defect had not existed for twenty-four hours, and the town officers had no actual notice or knowledge of it, or did not create it, it was left to the jury to find whether its officers, by proper diligence and care, might have known it, only when there was evidence that the defect was open and visible, so- that it might be said to be, in a sense, notorious.” “We think, if the coal hole was properly constructed, and the cover was properly fitted and was not apparently insecure, and the only defect, if any, was that it was left unfastened on the inside by the occupant of the cellar, and this was not known to the officers of the city or apparent from the street, that the jury could not properly find, under existing statutes, that the city could have remedied the defect or prevented the injury by reasonable care and diligence.” The trial judge, referring to the fact that the evidence showed that the cover rested by its own weight in the ring or socket, and that, as such things were made, they were not liable to fall through the socket if they were in their normal and proper condition, said to the jury, in substance, that there was evidence that they were sometimes raised, not merely in the use of them, but by the boys at play; that they had holes in them, which had formerly been occupied by plugs of glass, called bulls-eyes; that you could get hold of them and lift them by means of these holes, the glass having been removed or lost; adding: “Your own common sense would teach you that, if the socket in which the lid was to lie — 470 — was occupied in part by gravel or coal, or by any such, substance, that that would raise the Ud, so that possibly it might be liable to tip sideways, and tiltj and might, although the place where it should have lain had been clean” There was no evidence produced that the socket or ring in which the lid or cover was to lie was occupied in any part by gravel, coal, or any other substance that would raise the lid or render it liable to tip, as thus supposed; and there was no evidence before the juryto warrant the trial judge in suggesting any such matter as a ground of liability by which to charge the defendant. Ilis observations in this respect amounted, in substance, to a permission or suggestion that the jury might conjecture and guess at a cause of action in this respect, in the absence of any evidence whatever to support it. The observations were misleading, and, in our judgment, so prejudicial to the rights of the defendant as to require a reversal of the judgment. Yerdicts must be given upon competent evidence produced in court, and not upon mere loose conjecture or supposition. In view of the conclusion at which we have arrived, it is not necessary to consider whether the court erred in refusing to nonsuit the plaintiff on the motion of the defendant city, or in refusing to direct a verdict for the defendant city, inasmuch as upon another trial the evidence may be such as to present the case in these respects in quite a different light. By sec. 13395, S. & B. Ann. Stats., the qourse of procedure laid down in Papworth v. Milwaukee, 64 Wis. 389, has been ■changed, and the action is now brought in cases like the present against all wrongdoers in the first instance, without regard to the question whether they are all primarily liable; and after verdict the court- is required to enter judgment against all the defendants against whom the verdict shall be found, but shall stay execution against the city, if not primarily liable, until execution against those who are primarily liable shall have been returned unsatisfied in whole — 471 — or in part. The record fails to show that the appellant has been prejudiced in the least by .the course pursued in the present case. For the reasons already stated, we think that the recovery in this case is erroneous, and that it must be reversed. By the Court.— The judgment of the circuit court is'reversed as to the defendant city only, and the cause is remanded for a new trial.