Adlington v. City of Viroqua

• Decision Date: 13 January 1914
• Citation: 144 N.W. 1130,155 Wis. 472
• Parties: ADLINGTON v. CITY OF VIROQUA ET AL.
• Court: Wisconsin Supreme Court

155 Wis. 472

144 N.W. 1130

ADLINGTON

v.CITY OF VIROQUA ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Vernon County; E. C. Higbee, Judge.

Action to recover for a personal injury alleged to have been caused by the unsafe condition of a sidewalk.

The sidewalk was alleged to be in front of property owned by Henry Lindeman, William P. Lindeman, Regina Throwbridge and Albion Lindeman. The accident occurred during the lifetime of the latter. The action was commenced against the city after his decease. Henry Lindeman and Edith Lindeman, in due course, were appointed administrators of his estate. Under the charter provision of the city, section 1340a, St. 1911, making the owner of abutting property primarily liable in certain cases, they were brought in as defendants, Albion Lindeman by his personal representatives. The accident occurred December 9th, 1910. The alleged difficulty with the walk consisted of its being in an uneven and slippery condition because the water, precipitated upon a large building on the particular property, was conveyed therefrom by a pipe and deposited in a private alley on the premises near the walk so as to flow down the same to and onto such walk and accumulate thereon sufficiently to create the unsafe condition in cold weather. There was a culvert designed to afford a channel for the water under the walk; but it had been obstructed and useless for a considerable length of time. In passing over the walk at this point, plaintiff was alleged to have fallen because of its rough and slippery condition produced by the aforesaid circumstances. She was alleged to have received severe bodily injuries.

The issues were thus specially decided: Plaintiff was injured by falling on the sidewalk at the time and place alleged in the complaint. The walk was defective by reason of an accumulation of ice thereon. Such accumulation was formed from water discharged near the walk by way of a conveyor pipe leading to and taking water from the building in question. Ordinary care was not exercised in respect to the pipe and gutter and the culvert leading therefrom. Such fault was the proximate cause of plaintiff's injury. Had the officers of the city of Viroqua exercised ordinary care, they would have discovered the unsuitable condition of the walk in time to have remedied it. The condition of the walk had been continuous for three weeks prior to the accident. There was no want of ordinary care on plaintiff's part which contributed to produce her injury. She was damaged to the extent of $1,500. Judgment was rendered on the verdict in plaintiff's favor. The defendants, other than the city, appealed.

Bunge & Bosshard, of La Crosse, for appellants.

C. W. Graves, J. Henry Bennett, and H. P. Proctor, all of Viroqua, for respondent.

MARSHALL, J.

[1][2] The points argued in appellants' brief which are not discussed in this opinion, must be regarded as not involving any proposition of sufficient moment to warrant opinion treatment. It is quite useless to urge upon the attention of this court as ground for disturbing a judgment, that the jury came to a wrong conclusion as to matters involved in conflicting evidence. Where there is evidence on one side and evidence, direct or circumstantial, on the other, which from any viewpoint a jury could reasonably believe, the result, confirmed by the trial judge, is conclusive. That doctrine is older than this court. It cannot be too well appreciated. It should be remembered that the rule cannot be overcome by mere argument that there is no conflict in the evidence. When the trial court fairly decides that there is a conflict, warranting jury interference, the determination is well nigh as conclusive as a verdict where a conflict of evidence is conceded. Powell v. Ashland I. & S. Co., 98 Wis. 35, 73 N. W. 573;Bohn v. Racine, 119 Wis. 341, 96 N. W. 813;McCune v. Badger, 126 Wis. 186, 105 N. W. 667;Slam v. L. S. T. & T. Ry. Co., 152 Wis. 426, 140 N. W. 30.

Before it can be said that the evidence does not present a case of conflict, we must conclude that the trial judge was clearly wrong on the preliminary matter after giving due weight, in favor of the initial decision, to all the advantages below. That obviously calls for a case so strong as to leave little or no good ground to differ in respect to it. Here the trial judge was challenged, again and again, on the subject of whether there was a conflict of evidence affording room for a decision in either of two ways. The decision first given was likewise affirmed. If that must stand, and we are unable to see any commanding reasons why not, the verdict must necessarily prevail as regards the right of the conflict.

It is contended that the facts, as found by the jury and established by evidence, do not indicate any violation of duty on defendants' part. That is predicated on the theory that the culvert under the sidewalk was properly constructed and that its defective condition was not the fault of appellants nor of any one for whose acts they were responsible.

[3][4] By reference to numerous cases, it is conceded that, if one discharges water through a spout directly onto a sidewalk causing ice to form thereon so as to render the way defective, he is guilty of actionable negligence. That concession accords with well settled principles and is quite enough for this case. True the facts here are somewhat different from those in any of the adjudications cited to our attention; but the principle does not spring from the facts. The facts render the principle applicable. The principle is that ordinary care for the safety of others is not consistent with such conduct as that of a person accumulating water falling upon his premises into a body and discharging the same so as to naturally and probably result in rendering the premises receiving the flow in the artificial way, unsuitable for their ordinary use. He may divert surface water from flowing onto his land, or change the surface so as to cause water falling or coming thereon from higher lands to flow therefrom, accumulated into a stream, so long as he acts with reasonable regard for the effect upon the lower premises. That is the doctrine of the common law which has been fully...