Dapper v. City of Milwaukee

• Decision Date: 15 May 1900
• Parties: DAPPER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

107 Wis. 88

82 N.W. 725

DAPPER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

May 15, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Kathrina Dapper against the city of Milwaukee. Judgment for plaintiff. Defendant appeals. Reversed.Carl Runge, City Atty. (C. H. Hamilton, of counsel), for appellant.

O'Connor, Hammel & Schmitz, for respondent.

CASSODAY, C. J.

This action is to recover damages for personal injuries sustained by the plaintiff about 9 o'clock in the forenoon of February 14, 1897, while on her way to church, traveling north on the sidewalk on the west side of Hanover street in Milwaukee, and while crossing a public alley, when she slipped and fell, and broke her left wrist, and otherwise injured herself. Issue being joined and trial had, the jury returned a special verdict, to the effect (1) that the plaintiff was injured by falling on the crossing of an alley on the west side of Hanover street, between Mineral and Washington streets, in Milwaukee, February 14, 1897; (2) that the ice and snow had accumulated or remained on the crossing at the place of the accident at the time of its occurrence in such a level, rounded, or uneven condition as to constitute an obstruction or defect in the sidewalk, so as to render it unsafe and dangerous for persons using ordinary care to walk over the same; (3) and the same had continued in such condition for a week or more; (4) and such condition of the crossing was the proximate cause of the injury; (5) and such defective condition of such crossing had existed for so long a time prior to the injury that the defendant, through its officers and agents, in the exercise of ordinary care ought to have known of such defect, and could have remedied the same; (10) that the plaintiff was not guilty of a want of ordinary care which proximately contributed to the injury; (11) that the plaintiff was entitled to recover, and they assessed her damages at $600. From the judgment entered thereon for that amount and costs, the defendant brings this appeal.

The important question presented is whether the second and fourth findings of the jury are sustained by the evidence; in other words, should the nonsuit have been granted, or a verdict directed in favor of the defendant, on the ground that the evidence failed to disclose any actionable defect in the sidewalk or negligence in the city. The testimony of the plaintiff is to the effect that she was 71 years of age at the time of the trial,--22 months after the accident; that while walking very slowly and carefully to church, as stated, upon the wooden sidewalk across the alley, she “slipped and fell down backward,” and broke her arm; that the ice and snow on that crosswalk were rough and uneven and slippery. A summary of the other testimony on the part of the plaintiff, as given by her attorneys, is to the effect that “at the time and place where she fell the sidewalk crossing the alley was covered all over with lumpy, ridgy, rough, and uneven ice; that the ridges extending north and south on the crossing were from an inch to an inch and a half, or two inches high, and three or four feet long; that the lumps were from one and a half to three inches high; that the alley west of the cross-walk was higher than the walk and lower than the sidewalk, extending both north and south from the alley crosswalk; that the lumpy, ridgy, and uneven condition of the ice and crosswalk had existed for from three days to a week or more prior to the accident; that the planks of the crosswalk were decayed, and were in places entirely worn away, and that the crosswalk was lower than the surface surrounding it; that water would accumulate thereon during rainy seasons of the year, and when snow and ice would melt in the alley west of the walk and ground surrounding it; that when persons stepped on the rotten planks in passing over the...