Gagan v. City of Janesville

Dodge, J. The plaintiff’s appeal from the order refusing to strike out the bill of exceptions must be dismissed for want of proper certificate from which this court can be assured what records and papers weré relied on by each party on the [665] Rearing of said motion. Carpenter v. Shepardson, 43 Vis. 406; Glover v. Wells & M. G. Co. 93 Wis. 13; Hoffman & B. Mfg. Co. v. Burdick, 95 Vis. 342; Tenney v. Madison, 99 Vis. 539; Superior C. L. Co. v. Superior, 104 Vis. 463. The defendant contends that a verdict should have been directed in its favor for several reasons. Careful reading of plaintiff’s testimony, all of which relating to the subject is set forth in the statement of facts, convinces us that it wholly fails to show any causal connection between her fall .and the defect specified in her notice and complaint, namely, the hole in the sidewalk, resulting from the missing board. She nowhere testifies that stepping into that space caused her to fall, but, noticeably, more than once narrates her accident without reference to the fact that her foot went into the hole at all. On the contrary, her testimony shows quite •clearly that her injury was due to another and distinct defect,— to a loose and slanting board, which “jumped up,” or “rocked, and turned my foot.” Tor results of that defect plaintiff of course cannot recover. She neither mentioned nor hinted at it even by any general language in her notice to the city required by sec. 1339, Stats. 1898; and, •even if that difficulty were overcome, she has offered no evidence either that it was known to the officers of the defendant or that it had existed at all before the time of her injury. Proof of a defect and of an injury which might have been caused thereby is not enough. The plaintiff must show by reasonably direct evidence that the defect, and not something else, caused the injury. Hyer v. Janesville, 101 Wis. 371, 377, where we said: “ Vhere there is no direct ■evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to .guess where the truth lies and to make that the foundation for a verdict.” Ve are constrained to the conclusion that [666] there was not evidence to carry the case to the jury upon the question above discussed, and that the circuit court therefore erred in denying defendant’s motion for direction of verdict, for which reason the judgment must be reversed. Upon the questions of contributory negligence and of the time of the accident, also argued, we think the evidence was sufficient to justify their submission, but consider discussion of such evidence unnecessary in view of possible changes upon the new trial which must be ordered. By the Court.— Plaintiff’s appeal dismissed. On defendant’s appeal, judgment reversed and cause remanded for a new trial.