Crites v. City of New Richmond

• Decision Date: 10 December 1897
• Citation: 98 Wis. 55,73 N.W. 322
• Parties: CRITES v. CITY OF NEW RICHMOND.
• Court: Wisconsin Supreme Court

98 Wis. 55

73 N.W. 322

CRITES

v.CITY OF NEW RICHMOND.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, St. Croix county; E. B. Bundy, Judge.

Action by John Crites against the city of New Richmond for personal injuries caused by a defective sidewalk. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action brought to recover damages which the plaintiff claims to have sustained in consequence of a personal injury received by him while traveling on a sidewalk in said city, on and along the east side of Arch street, which, it was alleged, was defective, insufficient, and in want of repair, and that the defendant negligently and knowingly suffered and permitted said sidewalk for a long time previously to be and remain in such defective and insufficient condition. The defendant alleged that the plaintiff's injury was caused by his own fault and negligence. On the trial before a jury, it appeared, in substance: That the street and sidewalk in question were very generally traveled and used, and the sidewalk was on the most usual and direct route from the plaintiff's home to the business places in the city. The walk was 5 feet wide, and the planks, about 16 feet long, were laid north and south, and varied in width from 4 to 8 and 10 inches. That they were full of knot holes and had wany sides, and, where the plaintiff was injured, there was an incline or grade in the walk for about 4 rods, of about 2 1/2 feet. That he was going up the incline at the time on his way home, walking along, “not just thinking,” and his acquaintance, Mr. Heffron, was coming down on the opposite side of the street, going to his work, and the plaintiff spoke to him, and said, “What's your hurry?” and he replied, “I am in a hurry to go down to the shop;” and just then the plaintiff stepped into a hole in the walk on the side of a plank large enough to admit his foot, and his ankle was turned in the hole, causing the injury complained of. There was a hole there, and a broken plank, and there was a knot across the plank about 16 or 18 inches from the end of it, and it broke right down; and he stepped on the side of the other plank, and turned his ankle right down, and fell against the fence. The break in the plank was about 8 inches wide. It was broken clear off, about 16 or 18 inches from the end, and about 2 or 3 feet from a sleeper, to the long end of the broken plank. The depression or hole was 6 or 7 inches deep at the deepest place. When the plank broke down it bound on top, so that it did not rise back again. The plaintiff testified that he first saw the hole over a year before the injury, and had “avoided it after that every time I thought of it, and I would try to go over on one side or the other; I thought it was a dangerous place, that ought to be avoided”; that he noticed it pretty nearly every time he traveled up and down the street, which was several times a day,--two or three times a day,--and he had traveled it by night frequently; that there was a sidewalk on the other side of the street. He further testified that he was not at the time looking where he stepped, and was looking at Mr. Heffron, on the other side of the street; might have taken 8 or 10 steps, or 15, after speaking with him, and kept walking along at an ordinary gait. Other evidence was given descriptive of the condition of the walk and hole, and tending to show that the mayor and aldermen of the defendant city had notice of its existence. Dr. Wade was called, and testified to the treatment he had given the plaintiff's ankle for the injury; that it was a sprained ankle; sprains are where two bones come together to form a joint, and one bone is forced from its natural position with the other, and the ligaments are either ruptured or badly stretched; that he found the ankle swollen, and the plaintiff was suffering a good deal; he was confined to the house, where he saw him a number of times, and was afterwards put on crutches; that from what he observed and learned of the case, from his first consultation, and from objective symptoms, it was a severe sprain, the usual consequence of which is that the member is usually weakened from the rupture, and the ligaments are strained, so that it leaves the joint lax, and makes it weaker. The limb at the present time is smaller than the other; still had lameness in it. In answer to questions propounded by the plaintiff's counsel as to whether the ligaments sometimes became torn off or stretched so that they never resumed a normal condition, he answered, against the objection of the defendant, in the affirmative; also, to a similar question, that “in a severe sprain the ligaments sometimes tear off pieces of the bone of the joint, and that sometimes a sprain may be more serious than a fracture,--that is, the injury, the sprain, may couple with it, or in addition to the sprain you have a fracture, which, of course, makes it worse than a simple fracture”; that the weakened condition of the limb remains usually for a considerable length of time;...