Hakenson v. City of Neillsville

Siebeceeb, J. The defendant contends that tbe court erred in denying its request to award judgment dismissing tbe plaintiff’s complaint, because tbe evidence does not sustain tbe jury’s finding to tbe effect that tbe sidewalk was insufficient and in want of repair at tbe time of accident from a downward incline of tbe boards from tbe outer to tbe inner edge thereof and that there was on tbe walk, near tbe outer edge, a ridge of ice and snow three inches thick which bad existed for tbe three weeks immediately preceding tbe happening of plaintiff’s injuries. An examination of tbe record discloses that eight witnesses testified directly, in effect, that they repeatedly observed these defects in tbe walk for three months before tbe day of accident and for tbe two following days. As to tbe particularity of their observation, several of them testify to having specifically and repeatedly taken notice of tbe uneven condition of tbe walk while passing over it before tbe accident, and several of them testify to going to the place of accident early in tbe morning on tbe day following tbe evening when tbe accident happened and to tbe particularity of tbe inspection they then made, and they state that they found these defects of tbe slant of tbe boards in tbe walk and tbe presence of tbe ridge of ice and snow on tbe boards near tbe outer edge thereof, as claimed by tbe plaintiff. The direct evidence of tbe numerous witnesses who testify to tbe contrary is not of a nature and of such weight as to raise a question of law upon these issues. This conflict in tbe evidence presented questions involving tbe credibility of witnesses and tbe weight of evidence, and hence were peculiarly for solution by tbe jury. Tbe trial court properly submitted such issues to them, and ruled correctly in refusing to disturb their findings as to these issues after verdict. Tbe evidence is in its nature of tbe usual character and is so clearly sufficient to warrant the jury’s conclusion that it is not deemed necessary to repeat it here. It is contended that tbe court erred in dismissing the action [599] as to tbe defendant Taplin, the owner of the property on which the walk rested. There is no evidence tending to show that he is primarily liable on account of the defects in the walk, and hence the court properly dismissed the action as to him. The defendant urges that the evidence shows that plaintiff was guilty of contributory negligence as matter of law. This claim is made on the ground that it is without dispute that she had knowledge of the condition of the walk and that she carelessly undertook to use it when she knew the danger of using this walk and also that the walk on the opposite side of the street was in a safe condition for travel and available to her. It appears that the walk was extensively traveled by the public and for a considerable period of time was so used while it was in the same condition as at the time of accident; that a portion of it, sufficiently wide for pedestrians to use, was clear of snow and ice; and that plaintiff was using it in the accustomed way when she met another traveler, necessarily stepped aside, and was thus brought onto the icy portion. We discover nothing in the facts and circumstances of her conduct which conclusively shows her to have been negligent. Contributory negligence is a defense which must be affirmatively shown. Sweetman v. Green Bay, 147 Wis. 586, 132 N. W. 1111. The finding of the jury on this issue must stand. Nichols v. Jung S. Co. 135 Wis. 129, 115 N. W. 334; Zoellner v. Fond du Lac, 147 Wis. 300, 133 N. W. 35. It is urged that the court’s instructions were misleading, confusing, and incorrect. We have examined the charge and find it clear and definite, that it covers the issues fully, and states the rules of law applicable to the case correctly. There was no prejudicial error committed by the court in permitting the jury to táke the written charge into the room where they deliberated upon their verdict. Wood v. Aldrich, 25 Wis. 695; Loew v. State, 60 Wis. 559, 19 N. W. 437. The exception to the refusal of the court to submit in the [600] special verdict a requested question, on the point whether or not anything diverted plaintiff’s attention at the time she fell, is not well taken, since the inquiry was necessarily embraced in the question submitted on the issue of plaintiff’s contributory negligence. It is presumed that the jury considered this subject and found nothing in her action at this precise time inconsistent with their finding that she was not guilty of contributory negligence. Nor did the court err in receiving the evidence of the witness Southard over defendant’s objection. He was a competent witness on the matters testified to by him and they were relevant and material to the issues. The jury awarded the plaintiff the sum of $2,760 as compensatory damages. The evidence tended to show that plaintiff suffered a partial dislocation of her hip joint, a fracture of the neck of the femur, and a shortening of the leg of from three quarters of an inch to an inch. She was confined to her bed for many weeks; had to use crutches for over a year thereafter; was unable to do her accustomed labor, except a part of her household duties; and suffered pain in a degree usually attending such injuries. We cannot disturb the amount of the damages as excessive. The record is free from error affecting any substantial right of the defendant. By the Court. — Judgment affirmed.