Crites v. City of New Richmond , 1897 Wisc. LEXIS 104 ( 1897 )

PiNNey, <7.

1. The question whether the defendant city had been guilty of negligence in not repairing and keeping the sidewalk in question in safe and proper condition, which was the proximate cause of the plaintiff’s injury, was submitted to the jury under proper instructions, and the evidence was clearly sufficient in this respect to sustain the verdict.

The mere fact that the plaintiff had previous knowledge of the defect in the' sidewalk, and was familiar with it, and considered it dangerous, does not establish contributory negligence as a matter of law. Salzer v. Milwaukee, 97 Wis. 471; Simonds v. Baraboo, 93 Wis. 40. The defect was not one that could be regarded as imminently dangerous, and, as held in Wheeler v. Westport, 30 Wis. 392, and Cuthbert v. Appleton, 24 Wis. 383, the plaintiff was not bound at all times, by day or by night, when passing over the walk, to bear in mind the defect in it, and think of it, though he knew it was there and considered that it was dangerous. The plaintiff’s mind may have been busied with some train of thought until he was in close proximity to the defect or hole, when he was made conscious of the presence of his acquaintance Heffron on the other side of the street, and whom, he accosted, when a hasty colloquy occurred, during which he looked at his acquaintance, and did not look at the walk or for the hole, walking along perhaps ten or fifteen steps, when he stepped in the hole and received his injuries. That the events thus detailed should have occurred as stated by the plaintiff is quite natural, and that his attention should have been momentarily diverted and occupied by his meeting his acquaintance and what passed between them. The case in this respect is quite like the cases of Cumisky v. Kenosha, 87 Wis. 286, and Barstow v. Berlin, 34 Wis. 357. The existence of the defect may not, under the circumstances, have occurred to his mind. Whether he was guilty of contributory negligence or not was a question for the jury, and depended upon the inferences which the jury might fairly draw from all the facts and circumstances in evidence, and fhe opinion they might form as to the prudence of his conduct. In all cases in which the inference of contributory negligence, or the absence of it, is in doubt, giving to the testimony the construction most favorable to the party charged therewith, the question is for the jury. In any event, the proof of contributory negligence must be clear and decisive, not leaving room for impartial and unbiased minds to arrive at any other conclusion, in order to warrant a nonsuit or an absolute direction to the jury on the ground of contributory negligence. Kaples v. Orth, 61 Wis. 533; Valin v. M. & N. R. Co. 82 Wis. 6; McDougull v. Ashland S.-F. Co. 97 Wis. 382, and cases cited.

The only evidence as to the manner in which the accident occurred was, substantial!}7, that of the plaintiff. The court ■charged the jury that the burden of proving contributory negligence was on the defendant. While contributory negligence may appear on the plaintiff’s own showing, so as to ■render proof of the fact on the part of the defendant unnecessary, wTe do not think that the instruction was misleading, in view of the state of the proof and the fact that the court instructed the jury that “contributory negligence could not be presumed in the absence of evidence showing it, or facts and circumstances from which an inference that the plaintiff was guilty of negligence can be properly drawn.” We think that the charge on this point, on the whole, is free from objection.

2. We think that the testimony of Dr. Wade, objected to, -was properly admitted. He had testified as to the character and nature of the injury, and that “it was a severe sprain.” lie was a surgical expert, and had attended the case. It was competent to ask him what results usually, or even ■sometimes, accompany or follow such an injury. This was ■expert evidence, based upon the knowledge and experience of the witness as a physician and surgeon and his knowledge of the particular case. It is not fairly to be regarded ■as speculative or conjectural. The defendant had ample opportunity to cross-examine the witness and test the fairness of his evidence.

The record does not show any material error, and we have arrived at the conclusion that the judgment is correct and should be affirmed.

By the Qowi.-— The judgment of the circuit court is affirmed. '