#### Zoellner, Respondent, vs. City of Fond du Lac, Appellant.

*October 26*

November *14, 1911.*

*Municipal corporations:- Defective sidewalks: Injury to pedestrian: Notice, upon whom served: Contributory negligence: Knowledge of defect: Reasonable excuse for forgetfulness: Instructions to jury: Damages.*

*1.*By *the*adoption of portions of the general charter hy the defendant city many of the former duties of the sidewalk superintendent devolved upon the hoard of public works. Pursuant to a resolution of the council authorizing employment of a sidewalk *inspector*at a salary of $2 per day, one M. was employed hy said hoard. Afterwards an ordinance fixing salaries of officers fixed that of the sidewalk *superintendent*at $600 *301per year. M.’s duties related solely to the construction, repair, and inspection of sidewalks. He signed his reports and notices as sidewalk *superintendent,*and was recognized as such by the city. *Held,*that service upon him of notice of an injury from defects in a sidewalk was a compliance with a charter requirement that such notice be served upon the sidewalk superintendent of the city.

*2.*The legislature may provide for service of such a notice upon an agent or employee of the city who is not an officer thereof; so that, even if by the adoption of the general charter provisions the sidewalk superintendent was reduced from an officer of the city to a mere employee, that fact did not invalidate the service upon him.

3. The fact that he knew of the defect in a sidewalk, though raising a presumption of contributory negligence on the part of a person injured by reason of such defect, does not conclusively establish such negligence.

4. Where a carpenter seventy-one years old was injured by reason of the loose condition of boards in a sidewalk, — the defects being hidden and, though known to him, temporarily forgotten, — evidence that he was at the time walking home after his day’s work, carrying his tools in his hand and conversing with his daughter, was sufficient to make it a question for the jury whether or not his forgetfulness was consistent with ordinary care.

.'5. A charge to the jury in such case which, after stating that upon the question of contributory negligence .the burden of proof was upon the defendant, and after defining ordinary care, further stated that if the plaintiff had knowledge of the defect previous to the accident “such circumstance requires some evidence . . . reasonably sufficient to overcome the presumption of negligence raised by such knowledge, either by showing that plaintiff was proceeding upon the walk paying attention to the necessity of avoiding the danger, or that he forgot the existence of it and that his forgetfulness under the circumstances was consistent with ordinary care,” was not erroneous as being likely to lead the jury to infer that the burden was upon the defendant to show excusable forgetfulness on the part of plaintiff.

'fi. An award of $900 for an injury sustained by a carpenter seventy-one years old and earning $2.50 per day, by which he had a hole cut through his face into his mouth, two teeth destroyed and others injured, and was confined to his bed two weeks and to his house two months, and which caused rigidity and pain . in his back over a year after the accident, is *held*not excessive.

*302Appeal from a judgment of tbe circuit court for Pond du Lac county: Chestee A. To week, Circuit Judge.

*Affirmed.*

Action for personal injuries sustained by reason of a defect in a sidewalk. On tbe 8tb day of May, 1909, at about 6:30 in tbe evening, tbe plaintiff, accompanied by bis daughter, was walking borne from bis work along tbe sidewalk on tbe south side of Main street in tbe defendant city, carrying some carpenter tools in bis bands. When at a point on said sidewalk about twelve feet north of tbe north line of Twelfth street, one or more of tbe boards, when stepped upon, tipped up, causing tbe plaintiff to catch bis foot thereon and to fall with great violence upon tbe sidewalk. It is claimed tbe stringers of tbe walk, which ran lengthwise, bad become so rotten that sis of tbe boards at tbe place of tbe injury were loose and entirely unfastened, and that tbe boards themselves were more or less decayed. Notice of tbe injury was served upon one G. P. McEntee, claimed to be tbe sidewalk superintendent of tbe defendant city. Tbe jury, by special verdict, found (1) that the boards of tbe sidewalk at tbe place where plaintiff fell were loose from tbe stringers; (2) that such loose condition of tbe boards rendered tbe walk at tbe place unsafe for public use; (3) that such loose condition of tbe boards was tbe proximate cause of plaintiff’s injuries; (4) that tbe city authorities in tbe exercise of reasonable diligence ought to have repaired tbe walk prior to tbe time of plaintiff’s fall; (5) that there was no want of ordinary care on tbe part of plaintiff that contributed to produce bis injuries; and (6) that plaintiff was damaged in tbe sum of $900. Prom a judgment entered thereon in favor of the plaintiff tbe defendant appealed.

*L. E. Lurvey,*for tbe appellant.

*B. L.*Morse, for tbe respondent.

ViNje, J.

The defendant claims (1) that tbe notice of injury was pot served upon tbe proper officer of tbe city;. *303(2) that plaintiff was guilty of contributory negligence as a matter of law; (3) that the court erred in its charge to the jury relative to the question of contributory negligence; and (4) that the damages are excessive.

It appears that the notice of injury was served upon one G. E. McEntee. Plaintiff claims that at the time of the service of notice upon him' he was the sidewalk superintendent of the city, while the defendant asserts there was no such officer. The defendant city was organized under a special charter (Laws of 1883, ch. 152), and sec. 66 of subch. 18 thereof, added in 1889 (Laws of 1889, ch. 435, sec. 4), provides that no action shall lie against the city on account of an injury or damage to any person or property occurring by reason .of the insufficiency or want of repair of any sidewalk in said city unless a notice in writing shall have first been given to the street commissioner or sidewalk superintendent of the city, or an alderman of the ward within which the injury or damage shall have occurred, within thirty days from the time such injury or damage shall have happened. In 1904, pursuant to the provisions of sec. .926, Stats. (1898), the city of *Fond du Lac*adopted secs. 925 — 23 to 925 — 30, inclusive, except see. 925 — 29, secs. 925 — 78 to 925 — 94, inclusive, and secs.-925 — 201 to 925 — 207, inclusive, in lieu of similar provisions of its spécial charter. But in *Block v. Fond du Lac,*141 Wis. 85, 123 N. W. 654, it was held that notwithstanding the adoption of secs. 925 — 201 to 925 — 207, relating to the construction and repair of sidewalks, sec. 66., subch. 18, remained in force. Hence if Mr. McEntee was not sidewalk superintendent of the city within the meaning of sec. 66, there was no proper service upon the city.

The result of the adoption of the sections above referred to was to place in the board of public works many of the most important duties which under the special charter had devolved upon the sidewalk superintendent. Nevertheless the city, in April, 1908, adopted a resolution that the board of public works be authorized to employ a sidewalk *inspector*at *304a salary not to exceed $2 per day, and on the 2d of February, 1909, it adopted an ordinance fixing the salaries of certain city officers, and among others that of the sidewalk *superintendent*at $600. On May 4, 1908, Mr. McEntee was employed by the board of public works, but for no definite term, took no oath of office, gave no bond, and was paid at the rate of $2 per day. He inspected sidewalks, made reports to the board of public works and to the common council, served notices to repair, etc., upon property owners, and signed his reports and notices as sidewalk superintendent. His whole duties related solely to the construction, repair, and inspection of sidewalks. Sometimes, as a matter of accommodation, he would report defects in streets to the street commissioner and the latter would occasionally report sidewalk defects to him. In view of the duties he performed and the fact that the city recognized him as sidewalk superintendent, we think he was such within the meaning of sec. 66 and that service upon him constituted service upon the city. It is not necessary that service should be made upon an officer of a city. The legislature may properly designate service to be made upon an agent or employee thereof. So even if it be conceded that by the adoption of the general charter provisions the sidewalk superintendent was reduced from an officer of the city to a mere employee thereof, that fact would not invalidate the service upon him if he was still the person designated upon whom service might be made. That the sidewalk superintendent named in sec. 66 was such person was held in *Block v. Fond du Lac,*141 Wis. 85, 123 N. W. 654.

It is claimed that the plaintiff had knowledge of the defective condition of the walk prior to the injury and that no reasonable excuse was shown for his failure to remember that fact and properly protect himself, and that he was therefore guilty of contributory negligence under the decisions in *Collins v.*Janesville, 111 Wis. 348, 87 N. W. 241, 1087, and *305*Petrich v.*Union, 117 Wis. 46, 93 N. W. 819. In the latter ease the rule is stated thus:

> *“A*traveler, knowing of the existence of a defect in a highway, may temporarily forget the existence of such defect, and yet be in the exercise of ordinary care; that it will he presumed, in the absence of evidence to the contrary, that he remembered the defect, and was negligent in falling into it, but that this presumption will give way to explanatory circumstances appearing in the evidence, showing a reasonable excuse for forgetfulness; and that, when such circumstances are shown, the question is one for the jury.”

The mere fact that plaintiff knew of the defect in the sidewalk and still used it did not conclusively establish contributory negligence. *Simonds v. Baraboo,*93 Wis. 40, 67 N. W. 40; *Salzer v.*Milwaukee, 97 Wis. 471, 73 N. W. 20; *Crites v. New*Richmond, 98 Wis. 55, 73 N. W. 322; *Wolf v. C. & N. W. R. Co.*131 Wis. 335, 111 N. W. 514. In the instant case plaintiff testified that he knew of loose boards in the walk, but that he did not have that fact in mind when he was walking along at the time he was injured. He offers no affirmative oral excuse or explanation why he did not. The question therefore is, Are there any explanatory circumstances appearing in the evidence showing a reasonable excuse for forgetfulness? Plaintiff was a carpenter by trade, seventy-one years old. He was going home with his daughter after a day’s work, carrying his tools in his hand. He does not recollect that they were conversing at the time. She, however, testifies that they were. But even if they were not, we think it was a question for the jury to determine whether or not under the circumstances of this case he was guilty of negligence in forgetting the existence of loose boards in the walk, and that their finding that he was not cannot be disturbed. He was in company with his daughter, carrying tools in his hands; presumably his attention was somewhat engrossed by what he was doing and by the fact of companionship ; and if they were conversing, as the daughter testifies, *306that would be sufficient to account for his not remembering the condition of the walk. While the explanatory circumstances tending to excuse forgetfulness are not of the strongest character, yet they are sufficient to constitute a question for the jury. Rather slight circumstances have been held sufficient to carry such a question to the jury. *Wolf v. C. & N. W. R. Co.*131 Wis. 335, 111 N. W. 514. Moreover, it is not easy to perceive how a recollection of the defect could have enabled him to protect himself from injury unless they had left the walk entirely, for even if one preceded the other in the middle of the walk, which was about five feet wide, far enough ahead to prevent the other from stumbling on a board tipped up by him, it does not follow that he might not tip himself. The evidence shows the stringers were very rotten and that the boards also were decayed. That being so, even if a person walked in the middle he might break a board, tip it up, and stumble on it. The defects were hidden and of such a nature that it was practically impossible to securely protect oneself against them short of not using the sidewalk at all. It is otherwise in the case of open, obvious defects, such as the visible ditch or gully in the case of *Petrich v.*Union, 111 Wis. 46, 93 N. W. 819, and the hole in the sidewalk in the case of *Collins v.*Janesville, 111 Wis. 348, 87 N. W. 241, 1087.

Upon the question of contributory negligence the court instructed the jury that the burden of proof was upon the defendant. It defined ordinary care and then said:

> “If the plaintiff had knowledge of the existence of the defect claimed previous to the accident, such circumstance requires some evidence, direct or circumstantial, reasonably sufficient to overcome the presumption of negligence raised by such knowledge, either by showing that plaintiff was proceeding upon the walk paying attention to the necessity of avoiding the danger, or that he forgot the existence of it and that his forgetfulness under the circumstances was consistent with ordinary care.”

Defendant claims that this instruction confused the jury as to the burden of proof; that they might infer from it that *307tbe burden was upon tbe defendant to sbow excusable forgetfulness on tbe part of plaintiff. Sucb a construction seems, unreasonable, and we do not believe tbe jury so understood it. Tbe fair import of tbe instruction is tbat when it was established tbat plaintiff knew of tbe defect before tbe accident, tben tbe duty devolved upon bim to sbow tbat be proceeded attentive to tbe necessity of avoiding danger, or tbat be forgot, tbe existence of tbe defect and tbat sucb forgetfulness was under tbe circumstances excusable.

Plaintiff was awarded $900 damages. It is claimed tbe award is excessive. At tbe time of bis injury be was seventy-one years old and earning $2.50 per day. There was evidence tending to sbow tbat be bad a bole cut through bis face into bis mouth; two teeth destroyed and two others injured; tbat be was confined to bis bed two-weeks and to bis bouse two months; and tbat bis back received sucb an injury tbat there was rigidity and pain in it over a year after tbe accident. Tbe amount of damages awarded cannot be held excessive.

*By the Gourt.*— Judgment affirmed.