DeVine v. City of Fond Du Lac

• Decision Date: 28 January 1902
• Citation: DeVine v. City of Fond Du Lac, 113 Wis. 61, 88 N.W. 913 (Wis. 1902)
• Parties: DEVINE v. CITY OF FOND DU LAC ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 61

88 N.W. 913

DEVINE

v.CITY OF FOND DU LAC ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by Elizabeth Devine against the city of Fond du Lac and others. Judgment for plaintiff, and certain defendants appeal. Reversed.

This action is brought to recover damages for injuries claimed to have been sustained by plaintiff by slipping on a stone sidewalk in the city of Fond du Lac. The defendants Welch and Mangan are made parties with the city as being the owners of the property in front of which the accident occurred. The sidewalk in question was constructed of limestone flags of irregular size and shape. The defect complained of consisted in the fact that the stones were placed irregularly and uneven, the upper surface being worn smooth and slippery, and by lapse of time and use had become more and more uneven, and dangerous to travelers. The walk was 18 or 20 feet wide. The side next to the buildings for 8 or 10 feet was covered by planks. The plaintiff came out of a meat market adjoining the premises in question, and walked diagonally across the plank walk to the stone walk, where she slipped and fell, and was injured. It was a “nice bright day,” and there was no sleet or snow on the ground. The city answered, denying that the walk was defective, and alleged contributory negligence. It also set up that it was not primarily liable under its charter, and that, if the walk was out of repair, the owners of the property, and not the city, were liable to plaintiff. The defendant Mangan answered that he was not the owner of the property mentioned, and only had a mortgage interest therein. The answer of Mrs. Welch is largely by way of denial. The testimony of plaintiff and her witnesses related to the manner in which the accident occurred, the injuries sustained by her, and a description of the walk. Motions for a nonsuit were denied at the close of plaintiff's evidence, and duly excepted to. The defendants' testimony tended to show that the walk was not defective, and that the plaintiff voluntarily went from the plank walk to the stone walk. The defendant Mangan and his witnesses testified that the quitclaim deed to him was intended as securityfor the amount due on a mortgage he held on the premises and for advances made by him to pay certain attorney's fees for which his daughter was liable. At the close of the testimony the court denied motions to direct a verdict for the defendant, which ruling was duly excepted to. A special verdict of 18 questions was submitted. The jury found the plaintiff was injured by slipping and falling on the walk; that the walk was so insufficient and wanting in repair as to be dangerous to travelers; that such want of repair had existed for two years; that such condition was produced by “the wrong, default, and negligence” of both the lot owners and the city; that such condition had existed for such a length of time that both the lot owner and the city ought to have discovered it and repaired the walk before the injury; that in the exercise of ordinary care both the lot owner and the city ought to have foreseen that persons traveling thereon would slip and fall and be injured; that the plaintiff was not guilty of contributory negligence; that the quitclaim deed to Mangan was not a mortgage, and that plaintiff's damages were $1,500. Exceptions were taken to the form of the verdict and to portions of the charge. The court denied a motion made by defendant Mangan to set aside the answer to certain questions and for judgment in his favor; also a motion of each defendant to set aside the verdict and to grant a new trial; also a motion by each defendant for judgment in their favor notwithstanding the verdict, and a separate motion by the city for judgment in its favor on the ground that no cause of action had been proven against it. The court made findings of fact supposed to be established by undisputed evidence relating to plaintiff's proof of title in the defendant Mangan, to which numerous exceptions were taken. Plaintiff's motion for judgment on the verdict was granted. From the judgment against all the defendants the defendants Mangan and the city take separate appeals.

J. M. Gooding, Duffy & McCrory, and L. I. Lefebre, for appellants.

R. J. Mathews and T. L. Doyle, for respondent.

BARDEEN, J. (after stating the facts).

1. The first question common to both appeals is that of plaintiff's contributory negligence. The evidence on the subject was offered by plaintiff, and is without dispute. The sidewalk where the accident occurred was 18 or 20 feet wide. It was constructed of limestone flagging, the stones being of irregular size and shape. The upper surface was uneven, varying from an inch to two inches from a level, worn smooth from extended use, sloping to the north and toward the street, and was very slippery. At the place where plaintiff is supposed to have fallen there was a hollow or depression in the face of the stone about 3 by 5 inches in area, and 1 1/2 inches deep. On the side next to the building a plank walk had been laid over the stones, 8 or 10 feet wide, which also extended north and in front of the adjoining building, and perhaps further. The accident happened on a clear, bright day in October. There was no snow or sleet on the walk. The plaintiff came out of a meat market south of the premises in question, and crossed the plank walk diagonally, going north. Her description of the accident is as follows: “I came a few steps out right on the boards. I think about one or two steps, until I stepped on the stones. I went slantwise on the boards, for I remember of not coming on the stones for quite a little distance; and when I stepped on the stones then a few steps, my feet was taken from me, and that is all I know about it. Stepped on something that took my feet from me. I don't think I could have walked only a few steps after I struck the stone walk before I fell, because I am very careful on stones when I come to them. I just stepped on something that was kind of slanting, I imagine, and my two feet were taken from me so quick, and I can't account for any more. There were boards for me to walk on. I don't know exactly why I didn't continue to walk on those boards that extended right along there. I looked down on the stone walk before I got off the board walk. It appeared to me to be rough. Q. Why did you go on it then? A. Why, I don't know, sir, just to tell the truth about it. I don't know why I did go on it. Just walked down on the stones,--down off the boards. I looked just as I was putting my foot down, and then walked along. When I fell I was looking right ahead of me. I can't say as I was looking on the walk, but was looking right ahead.” She testified further that she did not know whether she slipped on the stone or from something that was on the stone. The testimony shows conclusively that she might have passed along on the plank portion of the walk in safety. She saw that the stones of the walk were uneven. Their smooth and slippery condition was perfectly apparent. Every element of danger disclosed by the testimony was before her. There was nothing to distract her attention, or to lull her into a sense of security. If it be conceded that the sidewalk was in a defective and unsafe condition, she knew it to its fullest extent. She might have avoided the danger by keeping on the plank walk. With full knowledge of all the conditions, in open daylight, with nothing to take her mind from what was before her, with no necessity therefor, she voluntarily encountered the danger, and was injured. To say that she may recover for such injuries is to offer a reward for temerity and rashness. If the rough, uneven, and slippery condition of the walk constituted an actionable defect, it must follow, since its nature and character was known to the plaintiff, that it was imprudent for her to venture upon it,--such imprudence as will preclude a recovery under the decisions of this court. Goldstein v. Railway Co., 46 Wis. 404, 1 N. W. 37;Hausmann v. City of Madison, 85 Wis. 187, 55 N. W. 167, 21 L. R. A. 263, 39 Am. St. Rep. 834;Fisher v. Town of Franklin, 89 Wis. 42, 61 N. W. 80;Collins v. City of Janesville, 111 Wis. 348, 87 N. W. 241. We need but repeat the rule stated in the last case cited that, if a person knows of a dangerous defect in a sidewalk, and is injured thereby, it is presumed that he remembered, and was negligent. No explanatory circumstances were offered in this case to rebut the presumption; hence the motions for a nonsuit ought to have been granted.

2. Another question of importance arises upon the contention of the city that under its...