Hoffman v. Village of North Milwaukee

Winslow, J. The fact that the plaintiff fell upon the sidewalk and was injured at the time claimed by her was not disputed upon the trial, nor is it now claimed that the evidence was insufficient to justify the findings of the jury to the effect that the sidewalk was in a defective condition, that the defects were the proximate cause of her fall, and that the defects had existed such a length of time as to charge the defendant with the duty of repair. The appellant claims, however, (1) that the evidence shows contributory negligence as matter of law; (2) that the notice of injury under sec. 1339, Stats. 1898, was insufficient; (3) that certain evidence was erroneously admitted; and (4) that the damages are excessive. These claims will be briefly considered. 1. The evidence shows that the plaintiff was walking upon the sidewalk in question at about eight o’clock in the morning. She testified that she was walking carefully, and saw nothing wrong with the walk until a board tipped sideways as she stepped .on it with her right foot, and caught her left foot, throwing her to the ground and seriously injuring her ankle; that she saw no missing board in the walk before she fell, but that afterwards there were several boards loose and disarranged, and one board altogether missing; that she frequently passed over the walk before her fall; that the accident happened on Tuesday, and she had passed over the sidewalk on the Sunday previous, and noticed nothing wrong and no boards missing. The testimony of other witnesses tended to show that there was one board entirely missing, and that two or three boards were loose, but lying in their places. The argument is that because it seems to be established that one board was missing, and that fact was plain to’ the view, hence she must have been guilty of contributory negligence in not noticing the fact and taking greater precautions. If the testimony showed that her fall was occasioned by stepping into the hole left by the missing board, the conclusion would prob [281] ably be unavoidable, there being nothing to ¡¡¡how that her attention was in any way distracted; but her testimony is positive that her fall was not caused by the 'hole, but by the tipping of a board which was lying in its proper place, and apparently in good condition. Under this testimony the question of contributory negligence was properly for the jury, and not for the court. 2. The notice given under sec. 1339, Stats. 1898, stated that her fall was caused by loose and broken boards, one of which turned over and tripped her up. It did not specify the place where the boards were loose, except by stating that it was on the west side of Thirty-Seventh street, between Hammond and Custer avenues. It appeared that the block between Hammond and Custer avenues was 600 feet in length, and that there were at least two other places in the block where boards were loose or broken, and the defendant claims that the notice was insufficient because it did not identify the place with sufficient particularity. The point would seem to be well taken were it not for the amendment of the section by ch. 85, Laws of 1893, now incorporated in the section, by which it is provided, in substance, that such notice shall not-be held insufficient solely by reason of any inaccuracy or failure in stating the time or in describing the place and the insufficiency, provided it shall appear that there was no intention to mislead the other party, and that such party was not in fact misled thereby. Undoubtedly, the burden of proving that there was no intention to mislead and no misleading in fact is upon the plaintiff, but these facts may be inferred from circumstances, without direct testimony to the point. Bowes v. Boston, 155 Mass. 344, 29 N. E. 633. The defect here was not in describing the defect or in stating the time, but simply in failing to definitely locate the point within the 600 feet. We are clearly of opinion that the circumstances show that the notice was given in good faith, and without intent to mislead or deceive. As to whether there was any [282] actual misleading of the defendant from the indefinite location of the place in the notice, we also think that the evidence negatives any such conclusion. The evidence shows that the place of the accident was in front of lot 7, just north of the residence of one Madden. It appears also by the testimony of the street commissioner of the defendant that he was personally informed that the sidewalk in that block was defective on the evening of November 20th, and that he took some lumber and repaired three places in the block on the morning of November 21st, and he identifies the place of the accident in front of lot 7, and states that two planks were loose and a third one altogether missing, and that he put in one new plank and 'some short stringers, and nailed down the loose planks. So far as appears, the defendant introduced all of the testimony which it could have offered, even had the place of accident been located in the notice as in front of lot 7. As the place of the accident was repaired on the day following, and nearly two weeks before the notice was served, the village could not, by examination of the walk after receiving the notice, have ascertained what the condition was before the accident. It appears also that the defendant called one or two witnesses as to the condition of the sidewalk at this very spot, and no suggestion was made at the trial that any difficulty had been experienced in meeting the plaintiff’s claim by reason of any uncertainty as to the place of the accident. 3. Evidence was received, against objection, that the sidewalk on the east side of Thirty-Seventh street, between Hammond and Ouster avenues, was in very poor condition, and this is alleged to have been error. "When the evidence was introduced and objection made, plaintiff’s counsel stated that it was offered simply to show that there was no safe chance to walk upon it. Counsel for appellant rightly claims that, in such an action as the present, evidence of other defects' in the highway at a distance from the place of accident is not [283] admissible to prove that the alleged defect in question existed or was an actionable defect. Olson v. Luck, 103 Wis. 33, 79 N. W. 29. In the present case, however, the testimony was offered for no snob purpose nor could the jury have so understood it. The principal defense made was that of contributory negligence in walking over a walk which she knew was defective, and this bad already been foreshadowed by the cross-examination of the plaintiff. In view of this claim, it was proper to show that the other walk on which presumably she might have traveled was defective, as bearing on the question of her care. Had there been no sidewalk of any nature on the other side of the street, or bad it been impracticable for any other physical reason to walk on the other side, it would hardly be claimed that it would be error to show the fact as bearing on the question of care in traveling. The purpose of the evidence was quite definitely stated when it was offered, and we think that for the purpose stated it was admissible. 4. The damages are claimed to have been excessive, but we cannot agree with the contention. The plaintiff was a woman thirty-three years of age, and quite heavy. Her ankle was partially dislocated, and she was confined to her bed nearly a month, and bad not fully recovered at the time of the trial, more than a year and a half later. She also suffered internal injuries of a somewhat serious nature. By the Court. — Judgment affirmed.