Cantwell v. City of Appleton

LyoN, J.

I. The refusal of the court to order the plaintiff to file a formal complaint is assigned for error. The court might have done so in its discretion; but we are aware of no rule of law which requires, in a case like this, that formal pleadings shall be interposed. The claim for damages filed with the city clerk contains all the essential elements of a good complaint. It alleges the corporate character of the defendant city, gives the location of the excavation and its dimensions, sufficiently describes the injuries the plaintiff received, charges the city with negligence in respect to the excavation, and alleges the giving of the notice of the injury required by law. Had a complaint been ordered to be filed, it would have been but a mere repetition of the contents of such claim for damages. Hence, further pleadings on behalf of the plaintiff were entirely unnecessary. The papers returned by the city clerk on the appeal to the circuit court gave the defendant all necessary information of the nature and amount of plaint *467 iff’s claim. Ye think the alleged error is not well assigned.

II. The motion for a nonsuit was based upon two general propositions. These are, first, that under a provision of the charter, which will presently be stated, there was no cause of action against the city; and second, that the plaintiff was guilty of contributory negligence.

1. The clause of the charter above referred to is as follows: “ The city shall not be liable for any damages arising or resulting from accidents occurring by reason of the sidewalks, streets, drains, sewers, gutters, ditches, bridges, or public grounds in the city being out of repair or in a defective or dangerous' condition, unless it be shown that, prior to the happening of such accident, one of the officers of the city had actual knowledge of the defect causing the accident for three days prior to such accident.”

Of course no city official could have notice of such excavation three days before the accident, because it had existed but a few hours. It was proved, however, that two aldermen of the city met near the excavation, shortly before the plaintiff fell into it, and conversed concerning its dangerous character, and one of them called the attention of the person vTho superintended the work to the same. The city marshal also knew of the excavation. Notice thereof to the aldermen was notice to the city; hence the city had actual notice of the excavation. It is very clear that the above provision of the charter has no application to this case. Here Avas a dangerous obstruction to travel upon the sidewmlk, wffiich the jury might well find called for prompt and immediate action by the city authorities. If it be conceded that the charter gave the city the right to leave the excavation there three days without incurring any liability, it certainly did not relieve the city from the duty of immediately putting up some kind of a barrier or warning to prevent people falling into the pit, if the jury were of the opinion (as they doubtless rvere) that some barrier should have been erected. The twro aldermen who met *468 there could, have erected the same in a few moments, as the materials therefor were at hand. The jury having found the barrier necessary to the safety of travelers there, it would be a vicious and most unreasonable construction of the charter provisions above quoted to relieve the city from liability for the consequences of the neglect of its officials to cause such barrier to be immediately erected. The case, in this particular, is like Parish v. Eden, 62 Wis. 272 , and many other cases in this court.

2. Was it conclusively proved that the plaintiff was guilty of negligence which contributed directly to the injury of which she complains? Presumably the question of her negligence was submitted to the jury and by the jury determined in her favor. True, the plaintiff walked into the pit in broad daylight. It is not claimed that her eye-sight was defective. From these facts it was argued that she was negligent. Had the jury so found, their verdict could not be disturbed. But the proof tends to show that there was no dirt or other object upon the sidewalk to indicate the -presence of the excavation. The plaintiff walked slowly, looking straight ahead, and did not see that the sidewalk had been disturbed. Ho one was working there at the «time, and she did not know of the pit. A gentleman walking but a few feet behind her also failed to see the excavation until the plaintiff fell. Her attention might have been .momentarily diverted at the time by any one of many causes, without raising a conclusive presumption of negligence •against her. Moreover, she was passing along the principal thoroughfare of the city, and had no reasonable cause to fear or suspect that such an unguarded pitfall would be allowed in her path. Many facts vrere proved bearing upon the question of the alleged contributory negligence of the plaintiff, from, which different inferences may reasonably be drawn. In such a case the authorities all agree that the question of negligence is for the jury.

We conclude, therefore, that the motion for a nonsuit was *469 properly overruled. This disposes of all the alleged errors adversely to the defendant.

By the Gourt.— The judgment of the circuit court is affirmed.