Alft v. City of Clintonville

Cassoday, C. I. 1. .The principal- error complained of consists in overruling the demurrer to the complaint with leave to the defendant to answer upon payment of $10 costs, and in the same order allowing the plaintiff to amend her “complaint by striking out thereof the word Thereafter’ . . . and to insert in lieu thereof the words ‘prior thereto,’ ” as mentioned in the foregoing statement. Of course, if such original complaint failed to state a cause of action, the demurrer should have been sustained, with leave to the plaintiff to amend her complaint on payment of costs. So ,the question turns upon the sufficiency of the original complaint. As indicated in the statement, the defect in the sidewalk complained of consisted in the fact that, at the time of the injury, the planks and stringers composing the same were rotten, decayed, broken, and defective, and would not hold nails. If such was the condition of the walk at the time of the injury, it is very obvious that it must have been in that condition for some time prior thereto; and, if so, it might have been inferred that the defendant, its officers, and superintendent of streets knew it for some time prior to the injury. But, aside from the notice of injury, the original complaint failed to allege such prior knowledge or notice. Whether they knew it after the injury was immaterial and of no consequence, so far as this action was concerned. As indicated in such statement, a copy of the notice of the injury was annexed to the original complaint and thereby made a part thereof, and such [338] notice expressly alleged “that said condition of said walk at the point designated had existed for a long time prior to the happening of said accident with the knowledge of said mayor and common council of said city.” So the complaint included the notice, and did allege such prior knowledge and notice. The mere fact that the order of the court gave the plaintiff “leave to correct” what the court deemed to be “a clerical •error in the complaint by striking out thereof the word Thereafter’ . . . and to insert in lieu thereof the words ‘prior thereto/ ” as mentioned, cannot be regarded as prejudicial to the defendant. Certainly it affected no “substantial right” of the defendant within the meaning of the statute (see. 2829, Stats. 1898). 2. Error is assigned because, in charging the jury on 'the question as to whether the sidewalk was “defective, as charged in the complaint, and by reason thereof dangerous to persons traveling thereon,” the court said: “In considering the evidence with reference to an answer to this third question, you are instructed that the evidence of witnesses, one or more, to the effect that they passed over the sidewalk in question, and that they did not see any loose plank or planks, is negative in character, and is, in itself, entitled to comparatively little weight as compared to testimony of equally credible witnesses, if such there were, who testified to passing over said sidewalk at about the same time and found loose plank or planks, if such witnesses so testified.” The general rule as to positivé and negative testimony is well understood. 3 Greenl. Ev. (16th ed.) § 315. But the mere form of the question put to the witness does not always determine whether his answer shall be regarded as positive or negative testimony. It depends more upon the opportunity, knowledge, and attention of the witness in regard to the particular fact about which he testifies. Thus it often happens that testimony which is negative in form may be really affirmative in essence and effect, within the real meaning and purpose' of the rule. This is well illustrated in numerous [339] cases in. tbis court. Sobey v. Thomas, 39 Wis. 317; Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 7 N. W. 347; Shekey v. Eldredge, 71 Wis. 538, 37 N. W. 820; Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123, 129, 65 N. W. 852. Tbe criticism is that tbe portion of tbe charge so given left tbe jury to infer that there were “one or more” witnesses wbo passed ■over tbe sidewalk in question and “did not see any loose plank or planks,” and bence tbeir testimony was “negative in character,” and, comparatively, was not entitled to as much weight as tbe testimony of equally credible'witnesses, “if such there, were, wbo testified to passing over said sidewalk about tbe same time and found loose plank or planks, if such witnesses so testified.” Of course, a person might pass over a sidewalk without observing a loose plank in case be failed to step on it. We are constrained to bold that there were “one or more” witnesses to whom such portion of the charge was applicable. The charge so given to tbe jury is abundantly justified by tbe repeated decisions of tbis court. Hinton v. Cream Cily R. Co. 65 Wis. 323, 337, 27 N. W. 147; Joannes v. Millerd, 90 Wis. 68, 70, 71, 62 N. W. 916; Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 369, 64 N. W. 1041; Wickham v. C. & N. W. R. Co. 95 Wis. 23, 25, 69 N. W. 982; Sutton v. C., St. P., M. & O. R. Co. 98 Wis. 157, 161, 162, 73 N. W. 993; Hildman v. Phillips, 106 Wis. 611, 616, 617, 82 N. N. W. 566. In tbis last case tbe refusal to give an instruction quite similar to tbe portion of tire charge in question was held 'to be error. It was there held that, “where testimony merely negative in its character has been received, the court should upon request instruct tbe jury that such testimony is •entitled to comparatively little weight as compared with tbe positive testimony of equally credible witnesses.” 3. Error is assigned because tbe court charged the jury that “if the city authorities do not use reasonable diligence in discovering and repairing defects, then they are legally at fault in that regard, whether an accident result or not.” Tbe [340] criticism is that this is so broad as to “exclude the question of the plaintiff’s contributory negligence.” There is no ground for such contention, since the court expressly charged the jury on the question of contributory negligence that “if you shall be affirmatively satisfied in the manner stated that the plaintiff was guilty of any, even very slight, want of ordinary care, which proximately caused or contributed to produce the injury, in such case your answer to question 6 should be Wes.’ ” 4. Error is assigned because the court charged the jury that “by 'ordinary cai*e’ is meant such care as persons of ordinary prudence would exercise under the same or like circumstances.” The difficulty with such assignment of error is that there is no exception to that portion of the charge. We find no reversible error in the record. By the Gowrt. — The judgment of the circuit court is affirmed.