Hales v. City of Wauwatosa

• Decision Date: 09 April 1957
• Citation: 275 Wis. 445,82 N.W.2d 301
• Parties: Bessie L. HALES, Appellant, v. CITY OF WAUWATOSA, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 301

82 N.W.2d 301

275 Wis. 445

Bessie L. HALES, Appellant, v. CITY OF WAUWATOSA, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Rehearing Denied June 4, 1957.

Meldman & Kahn, Milwaukee, Edward H. Meldman and Clifford K. Meldman, Milwaukee, of counsel, for appellant.

Milton F. Burmaster, City Atty., Milwaukee, Herbert L. Mount, Milwaukee, of counsel, for respondent.

WINGERT, Justice.

The judgment of the circuit court must be reversed, and that of the civil court reinstated.

The action is founded on sec. 81.15, Stats., the material part of which provides:

'If damages happen to any person or his property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining such damages shall have a right to recover the same from such town, city or village * * *,' up to a maximum of $5000.

While the terms of the statute suggest absolute liability, it is established by decisions of this court that an action under the statute is in legal contemplation an action for negligence, and accordingly the comparative negligence act applies. Trobaugh v. City of Milwaukee, 265 Wis. 475, 487, 61 N.W.2d 866; Morley v. City of Reedsburg, 211 Wis. 504, 511-512, 248 N.W. 431. Failure to build a safe street in the first place is negligence as a matter of law; failure to make repairs when needed presents a question whether there has been a failure to exercise ordinary care in the circumstances. Morley v. City of Reedsburg, 211 Wis. 504, 511-512, 248 N.W. 431.

The civil court made findings sufficient to support judgment for the plaintiff. On appeal to the circuit court, the findings of the civil court are not to be distrubed unless they are against the clear preponderance of the evidence. Wald v. Mitten, 229 Wis. 393, 396, 282 N.W. 634; Barkdoll v. Wink, 238 Wis. 520, 525, 300 N.W. 233.

Depth of hole. The civil court's finding that the hole was four and one-half to five inches in depth was supported by the testimony of plaintiff's son-in-law that he had measured it the morning after the accident and found it almost five inches deep at one spot and four inches at another, with an average of about four and one-half inches, and with an area of three to three and one-half inches in diameter being four and one-half inches or more deep. While there was also persuasive evidence of a depth of only about two inches, the conflict was for the trial court to resolve.

Of the cases dealing with holes of small depth or minor differences in surface elevation in a sidewalk or street, McCormick v. City of Racine, 227 Wis. 33, 36, 277 N.W. 646, probably goes the farthest in holding that such defects are non-actionable as a matter of law. There a difference of two and three-eighths inches in height between adjoining squares of a cement sidewalk was held not actionable. In Pias v. City of Racine, 263 Wis. 504, 507, 58 N.W.2d 67, we pointed out that liability under sec. 81.15, Stats. is not a matter of inches only, and that other conditions and circumstances must be considered. In Hansen v. City of Green Bay, 218 Wis. 644, 646, 261 N.W. 746, recovery was allowed where the hole was one to three and one-half inches deep, and so shaped that a pedestrian's foot might become jammed in it. In the present case it could be inferred that plaintiff's shoe caught in the hole, and the trial court so found. Generally speaking, insufficiency or want of repair is a question for the trier of fact. Here we cannot say that the trial court was wrong as a matter of law in finding that the hole in the street was of such character and depth as to constitute an actionable 'insufficiency or want of repair' within the meaning of sec. 81.15, Stats. For a collection of cases on the subject, see Note in 38 Marquette Law Review 211.

Location of hole. We cannot agree with the circuit court's holding that the defect in the street was not actionable under sec. 81.15, Stats. because off the course of travel.

While the statute in terms does not restrict its application to any particular part of a highway which the municipality is bound to keep in repair, this court's decisions have limited liability to pedestrians to cases where the offending defect was within the region where a pedestrian would reasonably be expected to travel. Kuchler v. City of Milwaukee, 165 Wis. 320, 326, 162 N.W. 315. We have recognized, however, that the common use of the automobile has...