Cooper v. City of Milwaukee

• Decision Date: 16 November 1897
• Citation: 97 Wis. 458,72 N.W. 1130
• Parties: COOPER v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 458

72 N.W. 1130

COOPER

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Margaret Cooper against the city of Milwaukee and others. From a judgment for plaintiff against defendant city, said city appeals. Reversed.

This action was brought against the city of Milwaukee, Stedman S. Newton, and Alvah Remington to recover damages for personal injuries sustained by the plaintiff by reason of falling into a coal hole in the sidewalk at No. 1247 Kinnickinnic avenue, opposite the premises owned by said Newton, and occupied by said Remington as a grocery store and living apartments, under a lease thereof. It was alleged and shown, in substance, that the sidewalk opposite the premises was between nine and ten feet in width, and beneath it was an excavation used in connection with the cellar of the premises for receiving coal and wood through four coal holes, so located as to be in the line of travel, and that they were, by reason of faulty and defective construction and want of repair at the time of and for six months prior to the accident, in a dangerous condition to persons passing over the sidewalk; that they had no appliances for fastening the cover securely to the sidewalk, but were merely lying loosely in their sockets; that on the forenoon of the 10th of July, plaintiff, with her husband, George Cooper, were walking up Potter avenue, going west, upon the walk on the north side of the street, lawfully, and in the exercise of ordinary care and prudence, and the plaintiff, relying upon the safe and proper condition of the walk, stepped upon the cover to the second coal hole from the east, in front of and opposite said premises, and was precipitated into the said coal hole by reason of said insufficiency and want of repair, and in falling struck her breast upon the upturned edge of said cover, whereby she sustained serious injuries, for the recovery of which the action was brought. The defendant city, admitting the ownership of the premises by Newton, and Remington's tenancy of the same, denied that it had any notice of any defect in the sidewalk at the point named, or at any point near there, at the time mentioned, and denied that the plaintiff was injured by reason of any negligence of the defendant; that the sidewalk was constructed and maintained by the defendant Newton, the owner of the premises, who had constructed and maintained the cellar or vault beneath the same without any order, directions, or permission of the defendant city, and that the said openings in said walk had been made by said Newton for his sole use and convenience and the use and convenience of the tenants of the premises; and the city claimed that the accident or injury was produced solely by the wrong, default, and negligence of said Newton and said Remington in respect to such opening in the sidewalk, and the covering of the same, and not otherwise, and that they were and are primarily liable for such injury. The defendants Newton and Remington answered, denying, in substance, the material allegations of the complaint. The plaintiff testified, in substance, that she and her husband were carrying a clothes basket of dishes, plates, etc., and she had four small pictures, framed, under one of her arms; that they were moving from Kinnickinnic avenue to the corner of Potter and Pine avenues; that as they passed up Potter avenue she happened to come to the hole, and in stepping on a cover went down, having hold of the basket with her right hand; that when she stepped on the cover to the coal hole it turned up, and struck her chest; that the cover was about 22 inches in diameter; that she took no particular notice of the cover before or at the time she stepped on it; that when resting on the corner she saw the cover was on, but took no notice whether it was in its place or not. One Charles Feldt testified to witnessing the accident, and to seeing the plaintiff fall in the manhole; that he had passed that way several times before, and there were glasses in the holes in the cover; the boys had been knocking them out with stones, and they had been for quite a while in that way; that at the time this hole was not safe,--the cover was loose in the socket; quite a number of the “bullseyes” were broken out of the cover; the cover inside the framework tilted up, and the ring in which it rested would remain; that there was about an eighth of an inch play on each side of it; that he examined the thimble or ring the cover rested on; found that it was very loose, and not fastened,--would not hold the plate; if you would step on the side of it, it would slip out; he had tried it himself, and pushed it out just by stepping on it; it would go out because it was not fastened; the depth of the ring or thimble in which the cover rested was three-eighths of an inch; the width of it where it laid on the ring was half an inch, so that it was a quarter of an inch off; it left about a quarter of an inch for it to rest on,--that is, the plate in the socket; the shoulder was three-eighths of an inch deep and one-half an inch wide; it was a round edge on the bottom, and that was what made it slip; that the hatchway was small enough so the cover could play in the ring, and, if the hatchway was pushed clear to the north side of the ring, and any one stepped on the south side, it was liable to tip up. He testified to the examination, by himself and others, of the cover and the socket immediately after the occurrence; that they tried the cover by stepping on it, and it went out of place; it was in place when they came there; that they pushed easy, not with the heel, but with the flat foot; did not push very hard, and it tipped up; that the sidewalk from the building to the curb was 13 feet wide. One Hunt, a witness, testified that they found that there was no rod through the staple below the cover to fasten it; the cover did not fit tight enough; the holes and covers had been in the sidewalk about six years; witness found that by putting his foot on the cover, and by pushing, or trying to, he could move the cover, and tip it up. Ferdinand Feldt further testified that he examined the hole where the plaintiff fell in next day, and found it in bad shape; there were three or four pieces of glass in, and the balance of them were gone; the cover did not fit well; and three days afterwards he saw the children take up the cover, and looked into the hole; he did not try to see whether it would turn up; the cover was not fastened down when he examined it; it was an iron sheet, with holes in it, with small round pieces of glass as big as dollars. There was no evidence to show that the city or its authorities had actual notice of the defects complained of. It was shown that at the time of the accident the cover of the coal hole was unfastened on the under side. The defendant produced witnesses who gave evidence tending to show that the coal hole and cover and sidewalk were in a proper and safe condition, and had been properly constructed, and that the city and its authorities had not been guilty of negligence in respect to the condition of the same. At the close of the testimony the defendant city asked the court to direct a verdict in its favor, which was refused. The defendant city then asked the court to instruct the jury: (1) That, if they found from the evidence that the cover to this coal hole would not tip up, or become misplaced, by ordinary use of the walk in passing over it, but that at the time of the accident to the plaintiff it was out of the socket, then their verdict must be in favor of the defendant city, unless they also found from the evidence that it was out of its socket for a sufficient length of time to have enabled the...