Byington v. City of Merrill

• Decision Date: 29 November 1901
• Citation: 88 N.W. 26,112 Wis. 211
• Parties: BYINGTON v. CITY OF MERRILL.
• Court: Wisconsin Supreme Court

112 Wis. 211

88 N.W. 26

BYINGTON

v.CITY OF MERRILL.

Supreme Court of Wisconsin.

Nov. 29, 1901.

Appeal from circuit court, Lincoln county; W. C. Silverthorn, Judge.

Action by Mary J. Byington against the city of Merrill. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action to recover compensation for personal injuries alleged to have been caused by the insufficient condition of a sidewalk. It was alleged in the complaint that the sidewalk where the accident occurred was out of repair, insufficient and dangerous in that, in the center thereof, there was a slippery, uneven ridge of snow about 12 inches wide and 4 inches high at the center, and sloping to the sides. The injury was said by plaintiff to have occurred in this way: As she was walking in the pathway on the outer side of the walk, nearer the center thereof than the outer edge, she stepped upon the side of the ridge of ice, and her foot slipped, causing her to fall, and resulting in the injuries complained of. The injuries alleged were a fracture of plaintiff's right leg, a strain of her right thigh and knee, and other injuries. The issues submitted to the jury are indicated in the following verdict:

“Question No. 1: Was the plaintiff injured on February 23, 1900, by a fall on the sidewalk on the west side of Prospect street, in the city of Merrill, at the point alleged in the complaint?

Answer: Yes.

Question No. 2: If you answer question No. 1 ‘Yes,’ then had ice and snow accumulated on the said sidewalk at the time and place of the accident, in a rough, uneven and slippery ridge so as to make the sidewalk at said point and time insufficient or out of repair so as to render it unsafe and dangerous for persons traveling thereon in the use of ordinary care?

Answer: Yes.

Question No. 3: If you answer question No. 2 ‘Yes,’ had such condition of said walk existed for a period of three weeks or more prior to the time of the accident?

Answer: Yes.

Question No. 4: If you answer question No. 2 ‘Yes,’ then had such defective condition of said walk existed for such time that the city authorities, in the exercise of ordinary care, ought to have known and remedied it before the accident?

Answer: Yes.

Question No. 5: Was said condition of said walk the proximate cause of the injury to the plaintiff?

Answer: Yes.

Question No. 6: Was the plaintiff guilty of any want of ordinary care which contributed to her injury?

Answer: No.

Question No. 7: If the court should be of the opinion on this special verdict that the plaintiff should recover, at what amount do you fix her damages?

Answer. $1,000.”

Judgment was rendered for plaintiff for the amount of her damages as found by the special verdict, and defendant appealed.

John Van Hecke, for appellant.

M. G. Hoffman (Curtis, Reid, Smith & Curtis, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

Does the complaint state a cause of action? That is the first question presented for decision. It is contended that this court held, in effect, in Rhyner v. City of Menasha, 107 Wis. 201, 83 N. W. 303, that an allegation that a public sidewalk is out of repair and is in a defective, insufficient and dangerous condition, does not state facts showing that municipal duty as to the safety of the walk for public use has not been performed; that a pleading or special verdict, in order to show a breach of such duty, should state, expressly, that the sidewalk was so insufficient as not to be reasonably safe for public travel. We do not so understand that decision. Certainly the law is otherwise. The court there had under consideration a finding that a street was “defective or in a dangerous condition or out of repair,” and it was said, in effect, that such a finding might be true and the street yet be in a reasonably safe condition for public travel, not insufficient or in want of repair, which is the test to be applied in measuring the duty of a municipality in caring for its streets under section 1339, Rev. St. 1898. The vice in the question was in several things being stated in the disjunctive, when either, or some one of them at least, might exist, and the street be all that the statute required it to be. The court did not decide expressly, or by reasonable inference, that it is necessary to allege in terms, in an action of this kind, that the public way involved was not reasonably safe for public use by persons in the exercise of ordinary care, but decided that it must be alleged, proved and found, in order to support a recovery by the plaintiff, that the public way was in want of repair or insufficient; and that an allegation or finding in that regard, in the language of the statute, or in language embodying the judicial construction of the statute, is necessary. The statute provides that, if damages happen to a traveler “by reason of the insufficiency or want of repairs” of a highway in any town, city or village, the person damaged may recover compensation therefor of such town, city or village. A sidewalk or street is not insufficient or in want of repairs within the meaning of the statute, so long as it is, under the circumstances of place, time, nature and amount of travel, reasonably safe for public use by persons in the exercise of ordinary care. Wheeler v. Town of Westport, 30 Wis. 392. It is easily seen that, as said in Rhyner v. City of Menasha, a public way may be defective, yet not be in such a condition as to be insufficient or in want of repair, because, regardless of the defect, the way may be reasonably safe for public use by persons in the exercise of ordinary care, under the circumstances. A highway, though out of repair to some extent, is not, necessarily, in want of repair in the sense of not being free from actionable defects, so long as it is reasonably safe for the legitimate purposes thereof. So in charging or finding the existence of an actionable defect in a public way, either the language of the statute should be used, that is, that the way was insufficient or in want of repair; or the equivalent thereof should be stated, that is, that the way was not in a reasonably safe condition for public use. It is the better practice, in submitting to a jury a question covering the subject, to shape it in this form: Was the sidewalk, at the time and place of the injury, in a reasonably safe condition for public use? and then to instruct the jury that in determining it they should consider the location of the way, the surroundings, the nature and amount of travel, and all the circumstances shown by the evidence bearing on the question. But it is perfectly proper to put the question in the form in which the fact is substantially alleged in the complaint in this case, i. e., Was the sidewalk at the time and place of the accident, insufficient and in want of repair?--the jury being instructed as to what constitutes insufficiency or want of repair within the meaning of the question. It is always proper to charge the existence of a fact in the language of the statute, and to submit an issue in respect thereto in language containing the substance thereof as made by the pleadings, with proper explanations. In this case the pleader alleged that the sidewalk was in a defective, insufficient and dangerous condition. That sufficiently informed the defendant that it was claimed that the walk was insufficient or in want of repair, or, in other words, that it was not reasonably safe for public use.

Did the evidence warrant the submission to the jury of the question of whether there was an actionable defect in the sidewalk which caused the injury complained of? That question was raised on a motion for a nonsuit at the close of plaintiff's evidence, and by a motion for the direction of a verdict, and again by a motion to set the verdict aside and grant a new trial; and the rulings of the court adversely to appellant were preserved for consideration on this appeal. The question is divisible. It involves, first, whether the evidence was sufficient to raise the question of whether the sidewalk was reasonably safe for public use at the time of the accident; second, if such insufficiency existed, whether appellant had knowledge, actual or constructive, thereof, in time to remedy the defect; and third, whether the insufficiency had in fact existed for the full period of three weeks continuously immediately preceding the accident. The second and third propositions may be considered as one for the purposes of this cause.

The evidence indicated that the defect consisted of a ridge of hard snow or ice that had formed during the winter in the center of the sidewalk about 4 inches high, and 12 inches wide at the base, sloping from the highest point of the ridge at the center thereof to the edges, and in a rough and slippery condition, so that a person in using the walk was liable to stumble by his feet coming in contact with the ridge, or to step upon the ridge and fall by his foot slipping upon its sloping and rough side. The law is too well settled to require discussion, at this time, that the mere slippery condition of a walk, caused by ice forming thereon evenly, or substantially so, or the mere existence of a roughened condition of the surface of a walk caused by footprints in soft, wet snow and its freezing in that condition, does not render such walk insufficient or in want of repair within the reasonable meaning of the statute; but that an accumulation of snow or ice on a walk in a ridge or rounded form, so as to form an obstruction to the use thereof with reasonable safety, by persons in the exercise of ordinary care, does constitute such insufficiency and want of repair. Nothing more can be said on that subject than has heretofore many times been said by this court. Within all reasonable bounds, the question involved in a case like this, as to whether an accumulation of snow or ice in such form as to render the sidewalk insufficient existed, is for the jury. We are not prepared...