#### Fuhrmann, Respondent, vs. Coddington Engineering Company, Appellant.

*March 21*

April *9, 1914.*

*Pleading: Waiver of defects: Negligence of building contractor: Temporary walk in street: Permit from city: Injury to pedestrian: Contributory negligence: Questions for jury: Excessive damages.*

1. Where, in an action for personal injuries, defendant assumes that the complaint charges it with actionable negligence, accepts an issue on that basis, and tries it out, it is too late on appeal to challenge the sufficiency of the complaint.

2. Defects in a complaint can only be reached by demurrer, by motion, or by objection made before entering upon the trial to the reception of any evidence under it.

3. No permit from municipal authorities for the temporary use of a street for building purposes can justify the construction or maintenance of a temporary sidewalk in a manner dangerous to pedestrians.

4. Upon evidence tending to show that a temporary walk built in the street by a building contractor was only twenty-five inches wide at the place of accident, that a considerable part of this would be covered by the overhang of a passing street car^ and that crushed stone piled on the other side between the walk and curb overflowed upon the walk and at times shoved it over nearer the street-car track, it is *held*that the jury were warranted in finding negligent construction or maintenance of such walk.

5. Whether such negligence was the proximate cause of an injury to the plaintiff who, while using such walk, was struck by a street car coming from behind him, and whether in using the walk he was guilty of contributory negligence, were in this case questions for the jury.

6. Plaintiff, who was seventy-two years of age, had. one of his feet crushed almost to a pulp while the other was badly crushed, every bone in it broken, and the muscles torn apart. Three fourths of one foot was afterward amputated and an operation of skin grafting was required. His suffering was great, and he will never be able to walk without crutches. His actual expenses were $1,800, and he received $4,500 from a third party in consideration of a covenant not to sue, *Held,*that an award of $4,500, reduced by the trial court from $6,500, was not excessive.

*651Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNce W. Halsey, Circuit Judge.

*Affirmed.*

This action was brought by the plaintiff against the Milwaukee Electric Eailway & Light Company, charging in separate counts negligence and gross negligence of the latter, resulting-in personal injury to the plaintiff. The next step in the action was to bring in the appellant as a party defendant. The respondent then settled with the street railway company for $4,500, executing to that company a covenant not to sue and discontinuing the action as to that defendant, also substituting the attorneys for that defendant as attorneys for the plaintiff in the action as it then stood against the appellant alone. Before bringing in the appellant an amended complaint was filed. The appellant answered this complaint and denied that it failed to use ordinary care. It justified placing the temporary sidewalk in the street under an order ancj. permit of the city of Milwaukee lawfully issued to it by the building inspector, it having been at the time engaged in the construction of a building upon the adjacent or abutting property. A special verdict found that a want of ordinary care on the part of the appellant caused respondent’s injuries, absolved the respondent from any guilt of negligence on his part, and fixed his damages at $6,500, which were reduced by the court below to $4,500. Error is assigned because the trial court refused' to direct a verdict for defendant; also because the damages, although reduced to $4,500 by order of the circuit court, were still excessive, and with reference to rulings upon evidence.

For the appellant there was a brief by *Quarles, Spence & Quarles,*attorneys, and *O. S. Thompson,*of counsel, and oral argument by *Mr. Thompson.*

Eor the respondent there was a brief by *Van Dylce, Bose-crantz, Shaw & Van Dylce,*and the cause was argued orally by *J. D. Shaw.*

*652TimliN, J.

It appears that tbe appellant considered that tbe complaint intended to charge it with negligence in respect to tbe maintenance or construction of tbe sidewalk in question and accepted an issue on tbat basis and tried it out, so that we have now no right to reverse in this court for insufficiency of tbe complaint. We presume tbe first assignment of error is based on tbe testimony of Mr. Salzstein, to whose statement tbat be found broken pieces of stone on tbe walk where tbe injured man was sitting an objection was made on tbe ground tbat tbe evidence relating to tbe condition of tbe walk was not within tbe pleadings and was immaterial, etc. It is to be observed tbat tbe defendant justified its maintenance of this temporary sidewalk in tbe street on tbe ground tbat it was engaged in tbe construction of an adjacent building and bad1 received authority from tbe city to place this temporary sidewalk in tbe street. It was competent in rebuttal of such claim to show tbat notwithstanding such permit tbe temporary sidewalk was unlawful because constructed and maintained in a manner dangerous to pedestrians. No permit can justify such construction and maintenance, and tbe dangerous character of tbe construction and maintenance effectually overcame any claim of immunity by reason of tbe order of tbe city authorities. This evidence was also competent in rebuttal of tbe affirmative matter in tbe answer. Objection to the general sufficiency of tbe complaint could not be taken in this indirect way. To do so would bring about tbe anomaly of defendant trying this question on tbe merits, and if successful having a judgment in bar upon a point which be considered necessarily involved for tbe purpose of using it as a defense, but irrebuttable because of defects in tbe complaint. Tbe defects in tbe complaint could only be reached by demurrer, by motion, or by objection made before entering upon tbe trial to tbe reception of any evidence on tbe ground tbat tbe complaint did not state a cause of action.

Taking up tbe case on tbe evidence, we discover evidence *653from which the jury might have found that the temporary sidewalk, although authorized by the proper officers of the city, was only from two feet to thirty inches in width and between twenty-one and thirty inches from the edge of the nearest rail of the street railway; that the appellant was engaged in hauling fresh stone and dumping it between this sidewalk and the cnrb, and that as the crushed stone piled up there and the loaded wagons rolled it down it spread at the base and crowded the temporary sidewalk over nearer to the street-car rail, and the defendant’s men, on removing the crushed stone, in their operations moved hack the sidewalk toward the curb from time to time with crowbars or other levers. Along the side next to the crushed stone of this temporary sidewalk there was a railing; none on the side next the street-car rail. The crushed stone pile between the temporary sidewalk and the curb, when it reached a considerable height, was spread out under this railing and on to the temporary sidewalk, narrowing the already narrow sidewalk and taking up part of the limited space furnished on the side farthest from the street car rail, while also making the narrow sidewalk more dangerous in the way of causing a fall. So. that, in short, there was evidence from which the jury might find that the defendant, although authorized to have a temporary sidewalk'here during its construction operations, nevertheless negligently constructed and maintained the same. The jury could well have found that the sidewalk as constructed was too narrow, too near to the street railway track, and not sufficiently fastened or anchored in place, and also that the defendant allowed it to he incumbered on the side farthest from the railway track with crushed stone to such an extent as to tend to crowd the pedestrian nearer to the railway track and to put under his feet an unstable or movable substance which might cause his fall at a critical moment. There is evidence from which the jury could properly have found that the walk itself was so near to the nearest rail of the street railway that it was *654partly under the overhang of a passing car. Respondent furnishes the following figures which seem to have support in the evidence:

The distance from the curb to the first rail was thirteen feet seven inches. The railing mentioned on the temporary walk was distant from the curb ten feet six inches. The temporary walk twenty-five inches wide; the overhang of the car was nineteen and one-half inches beyond the outside of the rail. This would leave quite a portion of this temporary sidewalk under the overhang of a passing car. With the pedestrian crowded over toward this portion of the walk by the crushed stone which overflowed upon the other side of the temporary sidewalk, there is quite a basis for the jury’s finding of appellant’s negligence in the construction and maintenance of the temporary sidewalk. There is also evidence from which the jury might properly find that the plaintiff was not guilty of contributory negligence. The sidewalk was a standing invitation to him to use it. He must use it in common with other pedestrians in the ordinary way, following, preceding, meeting, and passing. He may have failed to observe its dangerous proximity to the street railway or not have known the extent of the overhang of the street car or of the presence of the crushed stone on the narrow sidewalk or that a street car would overtake him at any particular point on this sidewalk, and it is very difficult for a court dealing with law, not facts, to say that he ought in the exercise of ordinary care to have known of the danger and to have avoided it.

The jury having become convinced of the negligence of the appellant in the mentioned particulars, the question whether or not that negligence caused the plaintiff’s injury was purely a question of fact.

It is claimed that the damages, are excessive. The plaintiff is a man seventy-two years of age, had one of his feet crushed almost to a pulp. Three fourths of his foot was afterward amputated and there was an operation of skin-grafting neces*655sary. Tbe other foot was quite badly crushed, every bone in it broken, and the muscles torn apart. Plaintiff would never be able to walk without crutches; his sufferings were of course great. His total expenses for hospital .attendance, surgical treatment, and nursing amounted to $1,800. He received in settlement from the street railway company $4,500. His loss of earning capacity was comparatively small, but his injuries were great, exceedingly painful, and his disability permanent. The finding of the circuit court upon this question of damages must be considered from the viewpoint of the advantages of that court not only in hearing evidence, but also in the matter of observing the conduct of the jury during the trial, the procedure at the trial, and the demeanor of witnesses and the appearance of plaintiff. And great weight must be given to its decision on this question. The learned circuit judge also exercised his judgment in reducing the amount awarded by the jury. We find no sufficient ground for disturbing the verdict in this respect, and the judgment should be affirmed.

*By the Court.*— It is so ordered.