Small v. Town of Prentice

Bardeen, J. Many exceptions taken to the reception of evidence are assigned as error, and argued by counsel for defendant. They especially ask a ruling upon the failure or refusal of the referee to require the plaintiff to appear for cross-examination, or to strike out his testimony given [259] on rebuttal. The condition of the record renders us powerless to pass on these questions. It has long been the ruling of this court that objections taken before the referee must be renewed before the court on the motion to confirm or to modify or set aside the report, and the rulings of the court thereon preserved in the bill of exceptions. In no other way can the rulings of the referee be reviewed by this court. Gilbank v. Stephenson, 30 Wis. 155; McDonnell v. Schricker, 44 Wis. 327. When exceptions are duly taken to the referee’s findings, as provided in sec. 2871, Stats. 1898, and are preservéd in the bill of exceptions, this court will review the case, except that it will not consider errors committed by the referee in the course of the trial, unless preserved and presented in the manner before suggested. The referee found that due notice of plaintiff’s accident was given the chairman of defendant on March 25, 1893. This finding is based upon the fact that plaintiff’s attorney, on March 24, 1893, sent a copy of such notice through the mail to 'Mr. Gallett, one of defendant’s supervisors. The proof also shows that personal service was had of the notice on May 11, 1893, upon which Mr. Gallett admitted service. There is no proof that the copy of the notice sent by mail to Mr. Gallett was not received by him, except such as may be inferred from the following statement from his testimony. His attention was being directed to the notice upon which he had admitted service. He says: “ I suppose that service was made on me at the time then stated. There was only one such service had on me of such notice.” Counsel for defendant construe this to mean that the notice sent him by mail was never received. We cannot agree with this construction of the testimony. At no time had his attention been directed to the alleged service by. mail. He was speaking only of the service admitted to have been made on May 11th, and then he says, “ There was only one such service had on me of such notice.” The use of the words “ such [260] service ” must be beld to refer to the service concerning which, he was being interrogated. There can be no question that a proper notice was sent through the mail in ample time for the witness to have received it on the date found by the court. Proof of the mailing of a letter in time to reach the person to whom it was addressed in the regular course of the mails, prima,fade establishes the fact that it was so received. McDermott v. Jackson, 97 Wis. 64; Jones, Ev. § 46. It is argued, however, that the service of such notice must personal, and that nothing short of that will answer the purpose of the statute. The language of the statute is: “ No such action shall be maintained against any . . . town . . . unless . . . notice in writing, signed by the party, his agent, or attorney, shall be given to ... a supervisor of the town , . . against which damages are claimed.” [R. S. 18Y8, sec. 1339.] No consideration of public policy of which we are aware requires that we should hold that such service should be personal. Undoubtedly, it must appear prima facie that such notice has been received by the proper officer, or no recovery can be had. Such facts appearing in this case, the finding of the referee cannot be disturbed. . Another question is raised as to the sufficiency of the evidence to support the finding that plaintiff’s accident was the direct result of the defective conditions alleged. Admitting, for the purposes of the argument, that an actionable defect in the walk was shown, still we are convinced that there is no evidence in the record to support the conclusion that the accident occurred by reason thereof. The evidence is entirely silent as to how the accident occurred. The plaintiff says that he was very careful, picking his way along, and fell and broke his leg. 'Whether he slipped on a ridge or stepped in a depression he does not say. The evidence is that the whole surface of the country was slippery and icy. It had been raining and freezing, so that it was generally [261] slippery. With, such attendant conditions, it was all the more necessary that plaintiff should show that his accident was the result of the defects of which he complained. This .question has been so recently discussed and so fully covered by Mr. Justice Marshall in the case of Hyer v. Janesville, 101 Wis. 371, that nothing further need be said. The finding upon plaintiff’s negligence is clearly against the weight of the evidence. True, he says he was walking carefully, picking his. way. He further says that he noticed the bad condition of the walk, and saw that it was rough, uneven, and in dangerous condition. Four witnesses for defendant say that he started for the depot on the run, and fell while running. If their testimony is to be believed,— and there is nothing suggested to impeach it, — the facts of plaintiff’s negligence would seem to be pretty clearly established. Knowing, as he said he did, that the walk was rough and uneven, and that the ground was slippery with ice and sleet, to start on the run over this walk indicates a degree of indifference and carelessness bordering on recklessness. If the weight of the testimony is to be considered, the court’s conclusions were certainly wrong. By the Oowrt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment for the defendant.