Chamberlain v. City of Oshkosh

• Decision Date: 21 February 1893
• Citation: 54 N.W. 618,84 Wis. 289
• Parties: CHAMBERLAIN v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

84 Wis. 289

54 N.W. 618

CHAMBERLAIN

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

Feb. 21, 1893.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Anna Chamberlain against the city of Oshkosh to recover for personal injuries caused by defendant's alleged negligence. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.H. I. Weed, for appellant.

Finch & Barber, for respondent.

For an ordinary, general, and transient slipperiness, due to the ordinary action of the elements only, and capable of being removed by such ordinary action of the elements, there is no liability, but for a local, unusual, and permanent slipperiness, caused by a defect in the street, and which the ordinary action of the elements would not remove, the city is liable. Cook v. City of Milwaukee, 24 Wis. 270, 27 Wis. 191; Perkins v. City of Fond du Lac, 34 Wis. 435;Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. Rep. 25;Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. Rep. 906;Grossenbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. Rep. 182;Paulson v. Town of Pelican, 79 Wis. 445, 48 N. W. Rep. 715;McDonald v. City of Ashland, 78 Wis. 251, 47 N. W. Rep. 434;Cromarty v. City of Boston, 127 Mass. 329;Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642; Todd v. City of Troy, 61 N. Y. 506;Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. Rep. 43; Kinney v. City of Troy, 108 N. Y. 567, 15 N. E. Rep. 728; Kenney v. City of Cohoes, (N. Y. App.) 3 N. E. Rep. 189; Spellman v. Inhabitants of Chicopee, 131 Mass. 443;Keith v. City of Brockton, 136 Mass. 119; Cloughessey v. City of Waterbury, 51 Conn. 405; Congdon v. City of Norwich, 37 Conn. 414; Burr v. Town of Plymouth, 48 Conn. 460; Landolt v. City of Norwich, 37 Conn. 615; Dooley v. City of Meriden, 44 Conn. 117; Hubbard v. City of Concord, 35 N. H. 52;Darling v. Town of Westmoreland, 52 N. H. 401;Clark v. City of Chicago, 4 Biss. 486;Mosey v. City of Troy, 61 Barb. 580; Mayor, etc., v. Marriott, 9 Md. 160;City of Providence v. Clapp, 17 How. 161;Evans v. City of Utica, 69 N. Y. 166; Darling v. Mayor, etc., 18 Hun, 340; Evers v. Bridge Co., Id. 144; Blakeley v. City of Troy, Id. 167; Thomas v. Mayor, etc., 28 Hun, 110. In all these cases the test of liability is whether the city is responsible for the slipperiness, either in its formation by a structural defect in the sidewalk, or by allowing it to remain too long after it is formed. Smooth and level ice may be dangerous as well as rough ice, and the question simply is, was any negligence of the city the cause of its formation or retention? The following cases are a direct authority on this point: Cromarty v. City of Boston, 127 Mass. 329;Spellman v. Inhabitants of Chicopee, 131 Mass. 443; Cloughessey v. City of Waterbury, 51 Conn. 405; Paulson v. Town of Pelican, 79 Wis. 445, 48 N. W. Rep. 715. If the condition is artificial, instead of natural, and is caused by the negligence of the city, the city is liable. The case of Spellman v. Inhabitants of Chicopee, supra, is almost identical in the facts with the case at bar.

ORTON, J.

This action is to recover damages for a personal injury of the plaintiff, occasioned by the want of repair and defective condition of a walk in Merritt street, in the city of Oshkosh. The defect is thus described in the complaint: “The said street, known as ‘Merritt Street,’ at a certain place in said street to wit, on the south side of said Merritt street, on the southeast corner thereof where said Merritt street intersects with Ford street of said city, was, (on the 21st day of February, 1889,) and for a period of four weeks or more had been, unsafe, insufficient, defective, and badly out of repair, in this, to wit, that at the point of junction between the stone crossing on the south side of said Merritt street, where said Merritt street intersects with Ford street, and the sidewalk on the south side of said Merritt street, where said stone crossing ends, the authorities of the city of Oshkosh, to wit, this defendant, negligently permitted a large hole to exist within the usual line and course of travel over said stone crossing and sidewalk, and negligently permitted and allowed said hole to exist and remain without placing any guard over or around the same, and negligently allowed said hole to become filled with water, and to become frozen over with a large surface of smooth ice, and negligently failed to place any protection, guard, or cover over or around said surface of ice, and failed to take any precaution to prevent or warn travelers over said crossing or sidewalk from walking upon and over said surface of ice. That persons traveling over and upon said crossing and sidewalk were compelled to walk upon and over said surface of ice, and that the aforesaid city authorities, to wit, the defendant, negligently failed to provide a safe and sufficient crossing or passage over or around said large surface of smooth ice.” The plaintiff's injury, and the manner of it, are substantially described as follows: The plaintiff, while traveling upon said Merritt street and over the said stone crossing, “did by necessity and in the ordinary course of travel, walk upon and over said large surface of ice, and without any fault on her part she fell upon said surface of ice with great force,” and received great bodily injuries therefrom. After the plaintiff was sworn as a witness in her own behalf, the defendant city interposed a demurrer ore tenus, on the ground that the complaint did not state a cause of action, and the objection to any evidence under it was overruled, and exception taken. The plaintiff testified that when she came to that point “her feet came from under her, and she came down on her back. She did not notice any barriers or guards around this place, or any ashes upon the sidewalk where she slipped.” According to the evidence, the depression in the street, where the water had accumulated which made the ice on which the plaintiff slipped down and was injured, was made by the junction of a sidewalk coming down Ford street with the stone cross walk over Merritt street. It would seem that the slight difference of the grade of the two streets made the depression. The slopé of the plank sidewalk down to its junction with the stone cross walk was only four inches, and the depression in the stone cross walk where the ice accumulated was from an inch to an inch and a half. The plank walk was over the gutter on Merritt street. This defect, if any, appears to have been in the plan of the work and its construction. At the conclusion of the testimony the defendant's motion for a nonsuit was overruled. The jury found a special...