West v. City of Eau Claire , 89 Wis. 31 ( 1894 )

NewiiaN, J.

The question is whether the undertaking is. ■ a substantial compliance with the provisions of the charter.providing for the security to be given to perfect an appeal in such cases. No doubt the statute must be strictly complied with in all matters of substance, or there is no appeal. The object of the provision for security is to provide indemnity to the city against loss of its costs in case it prevails upon the appeal. The security seems to be of no substantial value for any other purpose. This is the only purpose mentioned in Drinkwine v. Eau Claire, 83 Wis. 428. In that case the bond recited that the plaintiff had apppealed “ to the circuit court for Eau Claire county,” and was conditioned for the payment of all costs which should be adjudged against the appellant “ by the court aforesaid,” and not, generally, “ by the court,” as prescribed bjr the charter. The bond was held not to be a compliance with the charter, for the reason that the use of the word “ aforesaid ” limited the undertaking and the liability of the sureties to the payment of such costs as should be adjudged against the appellant by the circuit court for Eau Claire county, whereas, it was said, the action might be removed to another county than Eau Claire, and costs adjudged against the appellant in such other county were not within the terms of the bond, and che surety would not be liable for them. And so the bond failed to indemnify the city against loss of its costs, and was not a compliance with the provisions of the charter in that regard. For that reason the appeal was dismissed. But the undertaking in appellant’s appeal provides for the payment of all costs which shall be adjudged against the appellant “ by the court,” generally, and with no limiting words. In that respect it differs from the bond in the Drink-wine Gase. In that respect it complies, in substance, with the provision of the charter.

But the undertaking, after reciting that the appellant has appealed to the circuit court of Eau Claire county, has this condition: that the appellant shall and will faithfully prosecute her appeal “ in saicl circuit court aforesaid.” If these italicized words bad been omitted from the undertaking, it would have been in literal compliance with the charter, in that regard. The question is whether their insertion so far affects the substance of the security proposed as that it is not a substantial compliance with the provision of the charter. The purpose of the security is to indemnify the city for its costs. While a failure to faithfully prosecute the appeal is technically a breach of the undertaking, only nominal damages, not substantial damages, for such breach alone could be recovered. But a failure to faithfully prosecute the appeal, either in Eau Claire county or in any county to which the cause may be removed for trial, gives a right to a dismissal of the action, with a judgment for the city’s costs. Such a judgment for costs, in whatever county adjudged, is within the literal terms of the undertaking. This condition of the bond is not so much of the substance of the thing to be provided for as to make a strict literal compliance with the charter mandatory. A substantial compliance is sufficient. So it ivould seem that the undertaking does furnish the city the indemnity for its costs which the charter intended. This makes it, in substance, a compliance with the charter.

But the charter prescribes that the instrument of security shall be “ a bond.” There must be a substantial compliance with this provision. Doubtless, if the undertaking were not technically a bond, the fact that it affords the indemnity intended would prove it to be a substantial compliance. Wilson v. Morrell, 5 Wash. 654. But the undertaking is a species of bond. No certain form is necessary to constitute a bond. It has only a few requisites. It must be in writing; it must name an obligee; it must be sealed and delivered. . The plaintiff’s undertaking has all the requisites of a bond. It is technically a bond. 2 Am. & Eng. Ency. of Law, 449; Prof. T. W. Dwight, art. BoNd, Johns. Ency.

The remaining errors claimed by the defendant are: (2) Denying defendant’s motion for a nonsuit; (3) errors in instructions; (4) denying defendant’s motion to set aside the verdict.

The evidence on the part of the plaintiff tended to prove that at the place of the accident was a ridge of snow and ice along the track of the travel on the sidewalk, caused by the travel over the snow which had been allowed to remain and accumulate there; that such ridge was uneven and slippery; that besid® ,and near the ridge was a hole in the plank of the sidewalk; that at the time of the accident the plaintiff’s attention was momentarily diverted; that she slipped, her foot went through the hole, and was held there until she fell in such a way as to break her ankle; and that this hole had been there from the previous summer. The evidence tended to establish all the facts necessary to entitle the plaintiff to recover. It was the undoubted province of the jury to determine whether it did establish such facts. This court has held, repeatedly, and recently in Koch v. Ashland, 88 Wis. 603, that such an accumulation of snow and ice upon a sidewalk may constitute a defect for which the city may be liable, while such a hole in a sidewalk may unquestionably be such a defect. The momentary diversion of the plaintiff’s attention could not be contributory negligence as matter of law. The case was not so clear on either branch, upon the evidence, as to call upon the court to withdraw it from the jury. These vrere questions peculiarly within the province of the jury. It was not error to deny the motion for a nonsuit. The defendant offered no evidence. The case was submitted to the juryfor a special verdict. The jury found specially that the hole in the sidewalk was a defect, and caused the accident; that the defect had existed for so long a time that the defendant should have known of and repaired it; and that no negligence on the part of the plaintiff contributed to produce the accident. It cannot be held that there was no evidence to support the verdict upon either point. On the contrary, it was fully sufficient on each point.

But tbe defendant claims errors in several instructions given by tbe court to tbe jury. As to tbe question, In what did tbe defect consist? tbe court instructed as follows: “ Now, if you consider tbe snow that was allowed to accumulate and did accumulate there, if you consider that was a defect, of course you will say so; if tbe evidence satisfies by a preponderance of sucb evidence that there was a bole in tbe sidewalk, of that character, size, and condition, which rendered tbe sidewalk unisafe for travel, why then you will state, of course, it was tbe bole in tbe sidewalk, if tbe evidence should satisfy you that tbe bole was there at tbe time.” This seems to be unobjectionable. Either tbe ridge or tbe bole might be so serious a defect as to sustain plaintiff’s action. Both together, or tbe bole alone, might be sufficient cause to produce plaintiff’s accident.

Tbe court also instructed: “ If you find that she would not have fallen, while carefully walking upon this ice, unless her feet bad gone into some bole or defect in tbe sidewalk, then you will answer that it was caused by her slipping on tbe ice, primarily, and a foot slipping upon tbe ice into a depression in tbe sidewalk, if tbe evidence so satisfies you.” And so tbe jury found. Tbe objection made to this instruction, and to tbe verdict upon this question, is that there is no direct or positive evidence that tbe plaintiff’s foot went into a bole in tbe sidewalk at all. No one saw her foot in sucb a place, and plaintiff could not testify positively just bow her ankle came to be broken. Tbe bole was there; tbe foot was somehow held; tbe ankle was broken. It would be a legitimate inference, and not “ mere conjecture,” for tbe jury to find that tbe foot went into tbe bole and was held there, and that that was tbe manner of tbe accident.

Tbe defect which tbe jury found to be tbe cause of tbe accident bad been in tbe sidewalk since tbe previous summer. It was not error for tbe court to instruct tbe jury that that was sufficient time in which tbe city should have learned of and repaired tbe defect.

The evidence is sufficient to support the verdict. The instructions contain no error, at least no important error. There was no error in denying the defendant’s motion to set aside the verdict.

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