City of Depere v. Hibbard

• Decision Date: 24 November 1899
• Parties: CITY OF DEPERE v. HIBBARD.
• Court: Wisconsin Supreme Court

104 Wis. 666

80 N.W. 933

CITY OF DEPERE

v.HIBBARD.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Error to circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Clara Hibbard, by Charles Hibbard, her guardian ad litem, against the city of Depere. Judgment for plaintiff. Defendant brings error. Reversed.E. F. Parker and Greene, Vroman, Fairchild, North & Parker, for plaintiff in error.

Wigman & Martin, for defendant in error.

WINSLOW, J.

The defendant in error sued the city of Depere for personal injuries received from a fall upon a stone apron leading from the sidewalk to the crosswalk upon one of the principal streets of the city of Depere. The apron was composed of a single block of stone, 3 feet 6 inches wide, and 6 feet 11 inches long; one end being elevated to correspond with the sidewalk, and the other end being on a level with the street. The pitch of the stone from the sidewalk to the street was 8.4 inches, or about 1 inch in 10. There was also a slight lateral pitch to the stone, but hardly perceptible to the eye. The surface of the stone was practically smooth. On the morning of the accident, February 13, 1898, the stone was covered with smooth ice from one-eighth of an inch to an inch in thickness. It was smooth and slippery. The defendant in error was familiar with the stone, and walked up over it a few minutes before her fall, and testifies that she noticed the stone at that time, and that it was covered with ice, and was so slippery that she almost fell, and she knew its exact condition. In a few minutes she returned, and went down the stone, and slipped down sideways at about the center of the stone. A verdict was rendered for the defendant in error, and from judgment thereon a writ of error was sued out.

It is plain that the mere inclination of the apron, amounting to a fall of 1 inch in 10, even though combined with a slight lateral inclination, is not an actionable defect. It is not practicable to construct all sidewalks and crosswalks upon a dead level; there must be some slope; and such inclination as was present here has been frequently held not to be an actionable defect. Cook v. City of Milwaukee, 27 Wis. 191. If there was no actionable defect on account of the incline, the slippery condition resulting from ordinary accumulations of ice in winter, when such accumulations are smooth, does not constitute a defect. Beaton v. City of Milwaukee, 97 Wis. 416, 73 N. W. 53. Had such accumulations become...