McHugh v. Town of Minocqua

Dodge, J. The errors assigned are: First, that the court erred in taking from the jury the question of the plaintiff’s contributory negligence; second, the court erred in holding, as a matter of law, that the defendant town bad notice of the defect which caused the injury; third, the court erred in holding, as a matter of law, that the accident occurred within the limits of a highway. 1. Logically, the third assignment should be considered first, as its decision in accordance with the contention of the defendant would be final of the case. A careful examination of the plat convinces us that the triangle left unin-closed on the north side of lot 2 in block 4 is thereby dedicated as a part of Front street. The extension of the north line of that street for some 200 feet beyond this point, the [295] noninclosure of the end of the street, and the fact that all of the other east and west streets are left open on the east, all indicate expectation on the part of the platter that additions were likely to be made on that side, and that streets in snob additions would connect with the streets on this plat. For that purpose the triangle in question would be 'necessary. Being so dedicated, we think the fair construction of the resolution of the town board ordering Front street, amongst others, to be “ opened up for traffic ” for its full extent, followed by working of portions thereof, constitutes an acceptance by the town of that street, inclusive of this triangle. The very slightest application of geometrical or trigonometrical computation to the known angles and distances establishes that at the point of the injury, from thirty-five to sixty-three feet east of Chippewa street, the northerly line of this triangle was more than eight feet distant from the north line of the lot, so- that the entire sidewalk was within the triangle, and therefore within the street. If the locus m quo was a public street, the presence there of a walk, which was largely traveled by the public for some months before the accident, imposes upon the town the usual responsibility for its defects, notwithstanding it was originally constructed by a private individual and for private use. Luck v. Ripon, 52 Wis. 196, 199. The circuit court was right in holding the place of the accident to be within the street. 2. The first and second assignments of error mingle with each other, and may well be considered together. There is evidence establishing a generally defective and rotten condition of the sidewalk, of which condition the town officers had knowledge. There is also evidence that the specific defect which caused the injury was the breaking out of a portion of a single board. The evidence, however, is not at all conclusive as to whether this specific defect was in any way connected with the generally defective condition. While it [296] is undoubtedly the law that If the defect causing the injury is a part of, or included in, the generally defective condition of a walk, such specific defect need not be brought to the notice of the town, yet it is also true that there may be specific defects, causing injury, not so connected with the general condition that the town would be chargeable with notice thereof from its general knowledge. Sullivan v. Oshkosh, 55 Wis. 511; Spearbracker v. Larrabee, 64 Wis. 573; Shaw v. Sun Prairie, 74 Wis. 105; Bergevin v. Chippewa Falls, 82 Wis. 505. In substantially all of these cases the defective condition consisted in rottenness and resulting looseness of boards, and the specific defect was that a single board became loose because of rottenness,— exactly in line with the general condition known to the public officers, and which would have been prevented bad the general condition been properly treated. In Bergevin v. Chippewa Falls, on the other band, the sidewalk was known to be defective in the vicinity of the injury, but the known defects differed in kind from the specific defect causing the injury. The court held that knowledge of the one kind of defects did not charge the defendant with notice, in law, of the others. In the case at bar we only know that a part of a board was broken out,— whether by reason of rottenness or other fault of the kind characterizing the walk in general, or by accident or design, not inconsistent with its entire soundness and sufficiency, we are not informed. Indeed, so far as appears by the evidence, this specific defect might have existed at the time of the accident if the town officers bad two days before gone over the entire walk with due care and replaced every rotten piece with a sound one. If this-defect were of the latter sort, it having existed for only a day or two, no presumption in law of notice to the board would result. It therefore should have been submitted to the jury to say whether the defect causing the injury was a [297] part of, or clue to, tbe generally defective condition of the walk. If it was not, tbe question should have been submitted to the jury whether the town officers had notice, either actual or constructive, of its existence. If, however, the specific defect causing the injury was so included within the generally defective and rotten condition of the walk that it could be said that the undisputed evidence established notice thereof to the town officers, we are of opinion that the question of the plaintiff’s contributory negligence should have been submitted to the jury. He is shown to have been a marshal or policeman until within a few days before the accident, and for six months prior thereto. His duties during all of that period had required frequent travel over'this walk. He had noticed holes therein, and he was entirely familiar therewith. The general condition shown to exist was such as could not have escaped the notice of one so familiar with it, and, if that general condition was such as to justify the expectation of the specific defect in question, he was chargeable, as well as the town, with the duty of anticipating its possible existence and ordinary care on his part would require him to exercise precaution against being injured thereby. Grimm v. Washburn, 100 Wis. 229. His own testimony shows conduct at least justifying two opinions as to whether it was consistent with ordinary care. He testifies that, if his mind had been on the subject, he could have seen such a hole by looking out for it, but that he never gave it a thought, though nothing occurred to divert his attention. It appears to us, therefore, that upon the only theory upon which it could be said, as matter of law, that the town had notice of the defect, the plaintiff’s conduct was such that the question of his contributory negligence should have been submitted to the jury. By the Gourt.— Judgment reversed, and cause remanded for a new trial. BardeeN, J., took no part.