Berg v. City of Mlwaukee

• Decision Date: 06 December 1892
• Citation: 83 Wis. 599,53 N.W. 890
• Parties: BERG v. CITY OF MLWAUKEE.
• Court: Wisconsin Supreme Court

83 Wis. 599

53 N.W. 890

BERG

v.CITY OF MLWAUKEE.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by Valentine Berg against the city of Milwaukee for personal injuries received by reason of a defect in a sidewalk of defendant city. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

This action was commenced May 10, 1890, to recover damage for personal injury sustained by the plaintiff, and alleged to have been received by reason of a defective and insufficient sidewalk at the south west corner of the intersection of Third and Wells streets, in the defendant city, while walking thereon, on January 5, 1889, and that the plaintiff caused a written notice of such injury and such defect, as required by the statute, to be served upon the city clerk, March 9, 1889, wherefore he prays judgment for $5,000 damages. The answer consists of denials and counter allegations, and alleges, in effect, that the sidewalk on Third street was higher than that on Wells street, at said intersection, and that the plaintiff well knew the facts, and that the accident occurred about 6 o'clock in the morning, and was caused by the plaintiff's own negligence and want of ordinary care, and not otherwise, and that such negligence and want of ordinary care on the part of the plaintiff contributed to the injuries which he so received. At the close of the trial, the jury, under the charge of the judge, returned a special verdict to the effect (1) that the intersectionof the south sidewalk of Wells street with the west sidewalk of Third street was not in a reasonably safe condition at the time when the injury was sustained; (2) that the plaintiff's injury was occasioned by the fact that said intersection of said sidewalks at that point was not in a reasonably safe condition; (3) that the plaintiff was in the exercise of ordinary care at the time he sustained the injury in question; (5) that the plaintiff was damaged, in consequence of said injury, in the sum of $5,000; (6) that the jury find for the plaintiff. Thereupon the court ordered judgment in favor of the plaintiff and against the defendant, upon said special verdict, for the amount of damages stated, with costs. From the judgment entered thereon, the defendant brings this appeal.

Conrad Krez, City Atty., and V. W. Seely, Asst. City Atty., for appellant.

Julius E. Roeler and George E. Sutherland, for respondent.

CASSODAY, J., ( after stating the facts.)

It appears from the record, in effect, that Wells street runs east and west in the defendant city; that Third street, therein, crosses Wells street at right angles; that at the time of the accident, January 5, 1889, the sidewalk on the west side of Third street, at its intersection with the sidewalk on the south side of Wells street, was somewhere from 21 inches to 3 feet higher than said sidewalk on Wells street; that, in passing from said Third street sidewalk, down onto said Wells street sidewalk, there was one step about halfway down; that the...