Raether v. Town of Mentor

Barres, J. The appellant contends (1) that the plaintiff was guilty of contributory negligence; (2) that the town’ was not guilty of negligence; (3) that the fifth question in the special verdict was double; (4) that certain questions requested by the defendant should have been submitted to-the jury; and (5) that the court erred.in instructing the jury. The criticisms on the special verdict are not well founded and do not call for any discussion. The jury was warranted by the evidence in finding that the plaintiff was not guilty of contributory negligence. The third and fifth errors above referred to raise substantial questions that merit more lengthy consideration. It is urged that the town was not liable because it did nofr have actual knowledge of the defect and because the proof' failed to show that it existed for such a length of time that the town officers in the exercise of ordinary care should have-discovered and remedied the same. There is no evidence-in the case tending to show actual notice. There is but one-item of evidence which tends to show constructive notice.. That was given by the witness Allen, and is as follows: “The plank upon which Mrs. Baether stepped was entirely loose and separate from the sidewalk at the time of the-accident; it hadn’t been nailed down. The sidewalk had been in that condition ever since the time prior to the commencement of the excavation of the bank cellar.” [241] The excavation referred to was begun ten or twelve days before the accident occurred. Tbe appellant argues that the evidence quoted does not mean that the plank had been loose since the excavation was begun, but that the general condition of the walk and its surroundings had been the same during the period named. "While there is some ambiguity about the statement, a fair construction of it is that the plank was loose before the excavation was begun and continuously thereafter until the injury occurred, and the jury would be justified in so finding. ' The evidence showed that one of the town officers resided within a mile of the village, and was upon the street on which the sidewalk in question was constructed every day while the buildings were being erected, and that the other two officers were frequently there, as often as two or three times a week. It was for the jury to say whether, in the exercise of ordinary care, the defect in question should have been discovered and remedied before the injury occurred. This court cannot say as a matter of law that a loose plank in a sidewalk is a latent or hidden defect that could not be discovered by exereising ordinary care during the period named. The jury might very well have reached the conclusion that such a defect was readily discoverable by any person passing over the walk. That question, as well as the sufficiency of the length of time that the defect existed in order to establish negligence, was properly for the jury- Error is alleged because the court instructed the jury that “when it is necessary in building to disturb the walk, the supervisors may reasonably permit the lotowner to take up the sidewalk or incumber it within a reasonable limit and .with due caution for the safety of travelers.” It is not claimed that this instruction is not a correct statement of the law in the abstract. It is criticised because there was no testimony in the ease to which the instruction was applicable. We are unable to see how the appellant was prejudiced in [242] tbe slightest degree by this instruction or how it could possibly have affected the verdict of the jury. It would be a manifest perversion of justice to reverse- judgments because of every harmless redundant statement made by a trial judge in his charge. Error is also assigned because the court charged the jury that the lotowners were not responsible for any negligence or default on the part of the building contractors in reference to this sidewalk The accuracy of this charge, as applied to the defendant Babler, is attacked on the ground that the removal of the sidewalk was not merely collateral to the work contracted to be done, but that the performance of the contract necessitated its removal, and therefore he could not escape responsibility for the negligence of his contractor under the doctrine of Hundhausen v. Bond, 36 Wis. 29, 40; Hackett v. W. U. Tel. Co. 80 Wis. 187, 193, 49 N. W. 822; and Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58. There arq several answers to this contention. In the first place the evidence does not show that there was any necessity for the contractor to remove or interfere with any more of the walk than had been removed by Babler himself when he was doing the work of excavating. In the next place there is nothing more than mere conjecture to support the view that Babler’s contractor or his employees interfered with the walk or loosened the plank in question. Lastly, the jury found that the plank was loose a sufficient length of time so that the town should have discovered the defect and remedied it There is not a scintilla of evidence to support this finding, except that heretofore quoted, and we must assume that the verdict is based thereon.. That testimony showed that the plank was loose before the excavation was begun, and other evidence showed that the contractors did not begin work until the excavation was about completed. In view of the verdict of the jury this instruction became harmless, even if it were not correct, unless we assume that, had the [243] negligence of Babler’s contractor been submitted to the jury, it would have made a finding thereon inconsistent with the one referred to. The jury acquitted the lotowners of negligence and held the town to be negligent. This result, no doubt, was reached because the jury was unable to say from the evidence that either of the lotowners was responsible for the plank being loose, but was able to say that it had been loose so long a time that the defendant town, in the exercise of ordinary care, should have discovered and remedied the defect. We find no substantial error in the record. By the Court. — Judgment affirmed.