Burroughs v. City of Milwaukee

• Decision Date: 21 May 1901
• Citation: 86 N.W. 159,110 Wis. 478
• Parties: BURROUGHS v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

110 Wis. 478

86 N.W. 159

BURROUGHS

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

May 21, 1901.

Appeal from superior court, Milwaukee county; Orren T. Williams, Judge.

Action by Sarah Burroughs against the city of Milwaukee. Judgment for plaintiff. Defendant appeals. Reversed.Carl Runge and Jos. B. Doe, Asst. City Atty., for appellant.

Quarles, Spence & Quarles, for respondent.

CASSODAY, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff upon stepping from a street car on which she was riding westerly on Grand avenue after the car had stopped immediately west of the intersection of the west line of West Water street and Grand avenue, by reason of an alleged defect in the asphalt pavement. Issue being joined, and trial had, the jury returned a special verdict to the effect: (1) That the plaintiff was injured July 13, 1898, by falling near the northwest corner of the intersection of Grand avenue and West Water street, in the city of Milwaukee; (2) that there was at the time when and the place where the plaintiff was injured such a defect in the asphalt pavement as rendered it unsafe or dangerous for persons alighting from street cars when in the exercise of ordinary care; (3) that the condition of the pavement was, at the time and place of the accident, such that the defendant city, acting through its officers and agents having charge of its streets, in the exercise of ordinary care and prudence, ought to have known that such an accident as happened to the plaintiff might probably occur to persons using such street when in the exercise of ordinary care; (4) that such defective and unsafe condition of the pavement at the time and place of the plaintiff's injury was the proximate cause thereof; (5) that the plaintiff was not, at the time and place of the injury, guilty of a want of ordinary care which contributed to her injury; (6) that the plaintiff's left leg and ankle had not been previously weakened or injured so that it directly contributed to her injury on the occasion in question; (7) that they assessed the plaintiff's damages at $3,000. Thereupon, and in pursuance of an order of the court, judgment was entered in favor of the plaintiff for the amount mentioned, with costs. From that judgment the defendant brings this appeal.

It is conceded that when the car stopped at the time and place mentioned the plaintiff, who was 43 years of age, and a widow, left her seat, which was crosswise the open car, and about the middle thereof, and took hold of the post in front of her on the north side of the car with her left hand, and stepped down upon the step eight inches wide, and extending the whole length of the car; and then, after looking both ways to see if any teams were coming, she stepped down into a depression in the pavement, and her foot bent under her, and she fell, and seriously and permanently injured her. There were two street-railway tracks on Grand avenue, and the car in question was on the north track. It stopped at the usual and customary place for the stopping of all cars proceeding in a westerly direction. The intersection of those two streets was one of the principal business centers of the city, and was in constant use by large numbers of people traveling on foot and in vehicles. The principal question presented is whether it was error to refuse a nonsuit or to direct a verdict in favor of the defendant; in other words, was the alleged defect in the pavement such as to authorize a recovery in this action? The answer to the question necessarily depends upon the evidence. Seven witnesses were sworn and examined on behalf of the plaintiff in respect to the dimensions of the hole or depression complained of. The first one testified to the effect that at the time of the accident the hole was from a foot and a half to two feet north of the north rail; that the granite blocks had sunk from a half to an inch below the adjacent pavement; that the hole was scooped out to the south part of the granite blocks towards the rail, between the granite blocks and the north rail of the track, from four to six inches in width, and a foot and a half in length, and...