City of Superior v. Olt

• Decision Date: 29 November 1916
• Docket Number: 2388.
• Parties: CITY OF SUPERIOR v. OLT.
• Court: U.S. Court of Appeals — Seventh Circuit

239 F. 100

CITY OF SUPERIOR v. OLT.

No. 2388.

United States Court of Appeals, Seventh Circuit.

November 29, 1916

T. L McIntosh, of Superior, Wis., for plaintiff in error.

John A Cadigan, of Superior, Wis., for defendant in error.

Action for damages. Verdict and judgment for plaintiff. While walking on Fourteenth street in the city of Superior on the evening of November 16, 1914, plaintiff stepped upon or stumbled over some bricks, or pieces of broken brick, and fell, breaking her ankle, for which she brought this action. Neither the plaintiff nor her witnesses testified just how the accident occurred. It was about 7:30 p.m., and only the plaintiff describes the occurrence. She says that she was walking carefully along the street, 'and my foot hit a brick, and I fell. * * * When I fell, I hurt my knee, * * * and when I reached down to get up, I felt the bricks there and then I knew it must have been a brick. * * * I imagine it must have been a light brick, because the scar on the shoe was kind of light like brick, and when I went to get up I cut my hand on some of the bricks there; that is, half bricks. ' At the time of the injury she was near the center of the street, her departure from the usual course being occasioned by the presence of a large amount of building material, unloaded on the south side of the street and adjacent to the abutting building, the material having been placed there by the owner by permission from the city.

Fourteenth street runs east and west; the roadway was, at the time of the injury, brick paved for a width of 40 feet and on either side there was a tree bank and then a 6-foot cement sidewalk. Travel on the south sidewalk was blocked by the presence of the building material. Plaintiff stated that she did not go to the north sidewalk, because it was icy, a condition disputed by the defendant. A city ordinance granting a lot owner the privilege of using part of the street for temporary deposit of building material required the user to build a 2-foot plank walk around the same. This sidewalk was never constructed, as the street was newly paved with brick, and when unobstructed appellant claims was fairly comparable in safety to the cement sidewalk or to any temporary plank walk required by the ordinance.

Plaintiff stated that she had frequently, during the preceding weeks taken the course followed that evening and had always found some stray bricks in the street. In fact, she said there was a path that pedestrians used, and which she was following that evening, which was free from and partially lined on either side with brick. This was disputed by the defendant, whose witnesses stated that a few loose brick fell daily from the wagons, but each night they were removed from the street. There had been no hauling for at least two days prior to the date of the accident.

The city, having appropriately raised the questions, contends that the court erred in refusing to hold the plaintiff guilty of contributory negligence as a matter of law, and also erred in holding the evidence sufficient to support a verdict of negligence.

Before MACK, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge (after stating the facts as above).

Viewing the facts most favorably to the plaintiff, the question for determination on the issue of negligence is whether the presence of bricks or pieces of bricks, under the then existing circumstances, in a street otherwise sufficient for travel,...