#### Laconte, Administrator, Respondent, vs. City of Kenosha, Appellant.

*April 3*

April *23, 1912.*

*Municipal corporations: Death caused by insufficiency of sideioalk: Condition precedent to action: Notice of injury: For whose benefit action may be maintained: Nonresident aliens: Widow of resident: Domicile: Evidence: Admissions: Appeal: Harmless error.*

1. Service of notice of injury as provided in sec. 1339, Stats., is not a condition precedent to the maintenance of an action to recover damages for death of a person caused hy insufficiency of a public highway.

2. Where a person whose death was caused in this state by a wrongful act, neglect, or default was a resident of the state, had taken out his first citizenship papers, but left a widow in a foreign country who, at the time of his death, purposed joining him here, such widow should not be deemed a nonresident alien, but is entitled to the rights secured to surviving relatives by secs. 4255, 4256, Stats., even though the death occurred prior to the amendment of said sec. 4256 by ch. 226, Laws of 1911.

3. In an action against a city to recover damages for death of a person, alleged to have been caused by insufficiency of a sidewalk, an error in permitting a witness to testify to an admission by the mayor, after the accident, that he knew the sidewalk was dangerous, was so far cured by an explicit instruction to the jury to disregard such evidence as not to be ground for reversal of a judgment against the city.

*344Appeal from a judgment of the circuit court for Kenosha county: E. B. BelbeN, Circuit Judge.

*Affirmed.*

Action to recover for the benefit of the widow of plaintiff’s intestate, alleged to have come to his death by insufficiency of a sidewalk in the defendant city.

The pleadings presented the case as indicated in the following, which the evidence established, or tended to show: On a dark night about 10 p. m. the intestate fell from one of defendant’s sidewalks and death ensued by reason thereof. His home had been in *Kenosha*for a considerable time. He had taken out his first papers, entitling him to the rights of a citizen of Wisconsin, as the law then stood, though he was not a citizen of the United States. He had a wife, who was at his former home in Italy, and purposed having her join him at his new home. She was of the same mind and had taken some steps to effect the mutual purpose before the event in question. The walk was in front of an excavation which was some eight feet deep and between two buildings. Such excavation was made for the basement of a building to be erected. There was some sort of a barrier at the inner edge of the sidewalk which edge coincided with the brink of the excavation. The barrier was made of two pieces of lumber, one extending from a point some four or six feet from the surface of the walk at the corner of the building on one side down to the edge of the walk near the opposite building, and the other extending from the corresponding comer of such opposite building down to the walk in a similar manner, the two crossing nearly midway between such corners and being there nailed firmly together. There was a cement walk on the outside of the sidewalk area and up to within about three feet of the excavation, the surface of such three feet being about three inches lower down than that of the cement walk and composed of cinders, ashes, and stones. The condition had been as indicated for some six or seven months. It was in one of the most frequented portions of the city. The deceased was well acquainted with the *345situation. While lawfully using tbe walls near tbe point where the barrier was fastened pretty high up' on the building, by mistake or in some way, he fell into the excavation with fatal consequences. A few moments before such event he came from a near-by saloon where he had been drinking to some extent. He was not apparently intoxicated. He was unconscious when found and did not change in that regard so as to be able to disclose how he came to fall from the walk. No one saw him fall, but he was seen near the place thereof about the time of the occurrence. The surface of the walk along near the brink of the excavation was quite black with cinders and at the particular point it was quite difficult for one to see his surroundings. No notice of the accident, under sec. 1339 of the Statutes, was given. The cause was submitted to the jury, resulting in findings to this effect: The sidewalk, for want of a sufficient guard at the brink of the excavation, was not reasonably safe for public travel. The unsafe condition of the sidewalk was the proximate cause of the accident. Defendant had notice of such unsafe condition a sufficient length of time before the accident to enable it by the exercise of reasonable diligence to remedy the danger. The deceased was not guilty of any contributory negligence. It will require $3,000 to measure the recoverable damages.

In due course judgment was rendered in plaintiff’s favor on the verdict.

*Calvin*Stewart, for the appellant.

*Robert Verne*Baker, for the respondent.

Maeshall, J.

The first question is this: In case of a person being injured by insufficiency of a public way within the scope of sec. 1339 of the Statutes, and death ensues, the circumstances being such that, had he survived, he would he entitled to maintain an action for compensation in respect to the injury, making a case within sec. 4255 of the Statutes, is an action maintainable for surviving relatives, regardless of the *346condition of said sec. 1339 in respect to serving notice of tbe injury? That is ruled in tbe affirmative by *McKeigue v. Janesville,*68 Wis. 50, 31 N. W. 298. It bas been so long settled as not to be open to discussion. Tbe right created by sec. 1339 is one thing; that created by secs. 4255 and 4256 is another. Tbe notice is confined to tbe former. In case of the latter tbe vital condition is, death of a person caused by tbe fault of another such as would, if such person bad survived, have entitled him to pursue such other for tbe recovery of damages.

In case of a death from breach of duty under sec. 1339 tbe reasonable construction of tbe words of sec. 4255, “entitle tbe party injured to maintain an action,” etc., with reference to sec. 1339, is, entitle such person to maintain tbe action and do all tbe things essential to that end, including performance of tbe condition precedent to such maintenance; that is, give the requisite notice of tbe injury. Tbe condition bas no reference to tbe right secured to surviving relatives. If it were otherwise, in any case of death from breach of duty under sec. 1339 without opportunity to satisfy such condition as to tbe deceased, sees. 4255 and 4256 would have no efficiency whatever. No such absurd result could have been contemplated by tbe legislature, as suggested in tbe case cited.

We are not unmindful of tbe fact that, in *Carpenter v.*Rolling, 107 Wis. 559, 83 N. W. 953, where there was a death, as in this case, a notice was served under sec. 1339 and tbe court passed upon its sufficiency without suggesting that no notice was necessary. That question was not suggested, or, apparently, thought of. Counsel and tbe court treated tbe case as if notice were necessary and dealt only with sufficiency of tbe one given. There, certainly, was no intention to overrule *McKeigue v. Janesville, supra.*It was rightly decided. We should reach tbe same conclusion now if we were dealing with tbe matter from an original standpoint.

Tbe next question is this: In case of tbe death of a person *347in this state from tbe fault of another, under snob circumstances that bad be survived be would be entitled to maintain an action against sucb other in respect to bis injury, sucb person being a resident of this state and entitled to tbe rights of state citizenship because of having taken out bis first citizenship papers, but leaving a widow in a foreign country who purposed joining her husband at bis Wisconsin home, — is sucb widow entitled to tbe rights secured to surviving relatives by secs. 4255 and 4256 of tbe Statutes? That turns on tbe legislative intent embodied therein. Tbe language is general. In its literal sense it applies to residents of this state and nonresidents as well. In *McMillan v. Spider Lake S. M. & L. Co.*115 Wis. 332, 91 N. W. 979, where tbe person for whose benefit tbe action was prosecuted was tbe mother of tbe deceased and a resident of Canada, it was held that tbe statutes were not intended to confer rights upon nonresident aliens, but were confined to residents. Tbe decision was rendered in general terms. We are not disposed to cast any doubt upon its soundness as regards tbe particular situation with which tbe court dealt. It was supported by ample authority and will not be disturbed. Tbe legislature, since tbe cause of action in band accrued, has amended tbe statute so as to render it as broad as its literal sense, — abolishing tbe distinction between residents and nonresidents whether alien or not. Cb. 226, Laws of 1911.

Tbe court in *Robertson v. C., St. P., M. & O. R. Co.*122 Wis. 66, 99 N. W. 433, indicated, quite plainly, a disposition to confine *McMillan v. Spider Lake S. M. & L. Co., supra,*to tbe facts thereof. It declined to treat residents of a sister state as nonresident aliens within tbe broad language used in tbe former ease, and held that tbe legislative purpose was not to discriminate between residents,and nonresidents to tbe extent of excluding tbe latter from tbe benefit of tbe statute, where they are not residents of a country foreign to tbe United States.

*348It is tbe opinion, of tbe court tbat tbe spirit of restriction manifested, as indicated, should be applied to tbis case in order to effect tbe legislative intent. It is not thought such intent was to exclude tbe wife of a resident of tbis state who is a citizen thereof, though not of tbe United States, her purpose, at tbe time of tbe death of her husband, being to join him here. ' In such circumstances tbe domicile of tbe wife and citizenship, as regards tbe statute in question, should be deemed to be tbat of tbe husband according to tbe law in general on tbe subject.

Tbis court held, as tbe law stood before cb. 226, Laws of 1911, tbat, under sec. 12, Stats. (1898), one who has declared bis intention to become a citizen of tbe United States and who has resided in tbis state one year or more, as in tbis case, is not a nonresident alien as regards state policy, but is a citizen of Wisconsin with substantially tbe rights and responsibilities of other citizens. *In re Wehlitz,*16 Wis. 443; *In re Conway,*17 Wis. 526. Tbat is not in conflict with tbe rule that a state cannot make a person one of its citizens who is not a citizen of tbe United States. *Lanz v. Randall,*4 Dill. 425; *Minneapolis v. Reum,*12 U. S. App. 446. Tbat has reference to tbe conception of tbe term “alien” as embodied in tbe federal constitution or acts of Congress of tbe United States. Tbe policy in tbis country is to afford tbe wife of a citizen here tbe status of her husband in substantially all eases. *Halsey v. Beer,*52 Hun, 366; *Kane v. McCarthy,*63 N. C. 299; referring to an act of Congress on tbe subject. All tbis reinforces tbe idea expressed tbat tbe construction of tbe statute in *McMillan v. Spider Lake S. M. & L. Co.*115 Wis. 332, 91 N. W. 979, should not be extended to exclude from its benefits a person circumstanced as was tbe widow of tbe intestate in tbis case.

Complaint is made because tbe court permitted a witness to testify to an admission made by tbe mayor of defendant, after tbe accident, tbat be knew tbe sidewalk was dangerous. Tbe evidence was improper; but, tbe court,, appreciating tbat, *349distinctly instructed the jury to disregard the evidence. It may be, prejudice thus once created cannot be wholly cured by instructing the jury as in this case; but, in other than very exceptional cases, the rule is that such an error may be thus cured, and it is considered, that the difficulty was so far remedied here that appellant was not, within reasonable probabilities, in anyway harmed. The jury were put in possession of the whole situation. They viewed the premises at the time of the trial and were fully informed as regards how the situation as it then existed differed from that at the time of the accident. They heard the witnesses, enabling them to understand the matter fully as regards the safety of the walk, and probably reached the conclusion complained of uninfluenced by the objectionable evidence.

There are some other complaints; but none which seems to call for discussion. It is considered that if they involve error at all, it is error without prejudice.

*By the Court.*— Judgment affirmed.