La Fave v. City of Superior

• Decision Date: 07 November 1899
• Parties: LA FAVE v. CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

104 Wis. 454

80 N.W. 742

LA FAVE

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Nov. 7, 1899.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Joseph La Fave against the city of Superior. From a judgment in favor of plaintiff, defendant appeals. Reversed.T. L. McIntosh, for appellant.

Crownhart & Foley, for respondent.

CASSODAY, C. J.

This is an action to recover damages for a personal injury sustained by the plaintiff September 13, 1898, by reason of an alleged defective sidewalk. Issue beingjoined, and trial had, the jury returned a verdict to the effect that they found for the plaintiff, and assessed his damages at $600, and that the defect in the sidewalk had existed for such length of time that the officers of the city having the streets in charge would, in the exercise of ordinary care, have discovered and repaired the same prior to the accident. From the judgment entered thereon accordingly, the defendant brings this appeal.

There is evidence on the part of the plaintiff tending to prove that at the time of the accident the plaintiff was about 45 years of age; that the accident occurred between 8 and 9 o'clock in the evening; that at the time of the accident the plaintiff resided near the place where it occurred; that the sidewalk at and near that place was about 4 feet wide, constructed of planks 2 inches thick, and running lengthwise the walk, and laid on stringers; that some of the planks were longer than others; that at the place of the accident the plank on the outside--towards the lot--was about 5 feet long, 6 inches wide, and 2 inches thick; that the plank extended across a drain running under and crosswise the walk, and was broken directly over the drain, and sagged down into the drain so as to leave a hole between that plank and the next one to it; that the plaintiff stepped on the plank where it was broken, and went down with it, and his foot went into the hole, and he fell towards the lot, and his leg was broken; that he had been drinking some whisky two or three hours before the accident. On the part of the defendant there is evidence tending to prove that the walk was not as defective as claimed by the plaintiff, and that the plaintiff was intoxicated at the time of the accident.

Error is assigned because the court instructed the jury that the sidewalk at the place testified to was defective as a matter of law. There is no claim that the sidewalk was not in good condition at the place mentioned, except that the outside plank towards the lot was broken as indicated. There was still a good walk, at least 3 1/2 feet wide, for pedestrians to walk upon. While the plaintiff's evidence tended to prove that the outside plank was defective, yet it did not conclusively follow that the sidewalk at that place was defective....