Perkins v. City of Fond du Lac , 34 Wis. 435 ( 1874 )

Cole, J.

It is insisted by the counsel for the city, that the court should have granted the nonsuit and dismissed the complaint, because it appeared from the plaintiff’s own testimony that he was guilty of negligence, which directly contributed to produce the injury complained of. The facts upon which negligence on his part is predicated as a question of law, are the following :

The plaintiff testified, in substance, that at the time of the accident he was going to the railroad depot to take the cars to attend the Green Lake circuit on professional business; that he passed on Main Street to the south side of Division Street; that he went on that side of Division Street until he crossed the bridge over the east branch of Eond du Lac River, when he crossed to the north side of the street, and in going down the descent from the bridge to the sidewalk, he fell and dislocated and broke his arm. It was about half-past six in the evening, on the 8tb of January, when tbis occurred. It was a bright star-light night, with snow on the ground; and the plaintiff had in his right hand a satchel, and in his left a couple of law books. There was no sidewalk across Division Street at the point where he crossed from the south to the north side, but the street was planked. The walk on the north side of the street from the bridge west was a slope or descent of about two feet and a half in twenty feet; and was constructed of planks running with the street, with strips of wood nailed across the planks about an inch square and a foot apart. At the time, these strips were entirely covered with packed snow and ice, and the whole surface of the walk was very smooth and slippery. The plaintiff stated that he had known the place for some time— had been over the walk a good many times, and was aware that there was an inclined plane or slope in the walk 'at this point. It is assumed by the counsel for the city, that the plaintiff, in effect, • admitted that he knew that this inclined plane was covered with snow and ice, and was in a very slippery and dangerous condition that night; and that he was guilty of carelessness in leaving the walk on the south side, which was more level than the one to which he crossed, and that there was no reason for his voluntarily turning out of a safe way to one more hazardous and dangerous. But we do not think the inference warranted, that the plaintiff knew of the peculiarly slippery and dangerous condition of the walk at that time, although he doubtless knew the manner in which it was constructed. But the walk was one of the principal ones of the city, over which it appears hundreds of persons were daily passing. Now we are asked to say, as a question of law, and the court below was asked to so rule, because the plaintiff had this general knowledge of the manner in which this walk was constructed, and that there was an inclined plane there, and crossed the street to this walk when he could have kept down the side of the street on which he was then going, that he was guilty of negligence which contributed to the injury. Upon the facts it seems to us impossible so to hold. The question whether the plaintiff was negligent under the circumstances was fairly submitted to the jury. The jury, among other things, were instructed that if they found from the evidence that the plaintiff knew of the unsafe condition of the walk in question, and by ordinary care and prudence could have seen and avoided it, he could not recover for the injuries which he had sustained by reason of its insufficiency. It seems to us the court properly referred the question to the jury to determine, whether, under the circumstances, the plaintiff was exercising such care and prudence as ordinarily careful persons would use, in crossing the street and in not passing along the same sidewalk upon which he had been going. The street was planked, and could be conveniently crossed. There is no reason to suppose the plaintiff knew the inclined plane was in an unsually slippery and dangerous condition that night. He might naturally conclude that he could pass over a walk in. safety where hundreds were constantly passing, and .that' he was not exposing himself to any perils by taking the north sidewalk to the depot. It seems to us the case is not essentially different from what it would have been had the plaintiff passed from Main Street directly on to the walk on the north side of Division Street, and thus approached the dangerous part of the walk. If he would not then have been required, in view of his general knowledge of the way in which the sidewalk was constructed at that place, to cross over the street in order to avoid it, we cannot see how negligence can be predicated upon the fact that he crossed the street at the west end of the bridge and came on to the walk in question. At all events the inference of negligence and want of proper care on his part in coming upon the walk as he did, was not sufficiently clear to warrant the court in withdrawing the question from the jury. It does not come within the rule laid down in Achtenhagen v. The City of Watertown, 18 Wis., 331, which doubtless goes as far as any case decided by this court in raising the presumption of negligence as a question of law. I am certainly not disposed to extend'tbe doctrine of tbat ease, and I therefore think tbe question, whether the plaintiff was guilty of negligence or want of ordinary care was, under the circumstances, one for the jury to pass upon.

Another important question discussed in the case is, whether the evidence introduced on the trial showed or tended to prove that the sidewalk where the plaintiff was injured was out of repair, or constructed in so defective and improper a manner as to render the city liable on account of its negligence. It is claimed that the facts in relation to the condition of the sidewalk clearly show that it was not defective or unsafe for persons using due care in traveling upon it. We are of the opinion however that there was enough evidence bearing upon the question of defect or insufficiency to carry the case to the jui’y.

It appears from the testimony that the bridge across Division Street was raised over two feet in the fall of 1870, and that when the bridge was raised this inclined walk on the north side of the street down to the sidewalk was constructed. The witness E. H. Jones testifies that his place of business was on the south side of Division Street, and that he was familiar with the structure of the walk and the approaches to the bridge on the west side of the river. He says that it was a very slippery place there during cold weather, and that in November, 1871, he spoke to the chairman of the ward, asking him if this sloping arrangement or sidewalk could not be done away with, and the walk made nearly level at that point, and told him that unless this were done there would be danger of persons falling in passing over it. The officer promised to have the walk 'raised before winter set in, but the walk in fact was not changed until the next spring. There were strips nailed across this inclined walk, and a railing put up on the north side to assist persons passing over it; but still it appears that when these strips became covered and packed with snow and ice the place was very slippery, so much so that it was difficult for travelers to pass up and down it. Now it is said that mere slipperiness of a sidewalk arising from the ordinary action of the elements, as snow and frost, is not a defect in. this climate, within the sense of the statute, for which a town or city is liable. This was so decided in Cook v. The City of Milwaukee, 24 Wis., 270, and 27 id., 191. But in the case before us, while the slippery condition of the walk doubtless contributed with other causes to'produce the injury, yet this was not the defect complained of. It is alleged in the complaint, and the testimony strongly supports the averment, that the walk at this point was constructed in a faulty and unsafe manner. And if it was unskil-fully built, so as unnecessarily to increase the danger and peril of persons passing over it while it was covered with snow and ice, this would certainly constitute a defect for which the city would be liable. That it was practicable to construct the walk differently and more on a level with the bridge, so as to avoid the danger of passing up and down the descent, is a fact fairly inferable from the evidence. Indeed, it appears that the walk was subsequently changed and raised up, thus doing away with the inclined plane. From these facts the jury might well have found that the walk was improperly built, and that as a consequence it was not safe and convenient for ordinary travel. If so, it was the fault of the city, and it must respond in damages to one sustaining injury through its negligence. The case is plainly distinguishable from that of Cook above cited, as these remarks show. If the chairman of the ward, when his attention was called to the matter, had raised the walk and extended it so as to reduce the grade, the injury would doubtless have been prevented. This shows a breach of duty on the part of the city authorities; at any rate it is enough to raise a fair presumption of negligence on the part of the defendant.

On the trial the defendant offered to show that there were a great number of bridges in the city which were built higher than the street, and that nearly all the approaches to these bridges were raised. The evidence was objected to, and ex-eluded. We can not see what tendency tbe evidence offered •would have to prove that tbe walk in question was constructed in a reasonably safe and proper manner. The way of constructing one walk might be so controlled by surrounding circumstances as to make it proper, and yet this might be a very unsuitable manner for constructing another. An uneven or inclined walk might be permissible where there was little travel and where connecting streets rendered it necessary; while such a walk might be a defect in á thoroughfare where thousands were passing daily, and where it was entirely practicable to construct the walk on a level. The evidence offered would only raise numberless collateral issues, which would distract the attention of the jury from the real question before them. We therefore think the evidence was properly excluded from the consideration of the jury. Timm v. Bear, 29 Wis., 256; and Hubbard v. Concord, 35 N. H., 52.

The judgment of the circuit court must be affirmed.

By the Court — Judgment affirmed.