Hausman v. City of Madison

• Citation: 85 Wis. 187,55 N.W. 167
• Parties: HAUSMAN v. CITY OF MADISON.
• Decision Date: 02 May 1893
• Court: United States State Supreme Court of Wisconsin

85 Wis. 187

55 N.W. 167

HAUSMAN

v.CITY OF MADISON.

Supreme Court of Wisconsin.

May 2, 1893.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by C. F. Hausman against the city of Madison for injuries received by falling on an icy sidewalk. A nonsuit was granted, and plaintiff appeals. Affirmed.Bushnell, Rogers & Hall, for appellant.

B. W. Jones, for respondent.

ORTON, J.

This action is brought to recover damages for a personal injury to the plaintiff, caused by the defective condition and want of repair of a sidewalk of said city. At the close of the testimony for the plaintiff the circuit court granted a nonsuit on the motion of the defendant. The grounds of the motion were that there was no negligence on the part of the city shown, and that there was contributory negligence on the part of the plaintiff shown by the evidence. Of course, either one or the other of these grounds, sustained by clear and satisfactory testimony, would be sufficient to justify the nonsuit. In an action for negligence a nonsuit is proper only when the inference of contributory negligence on the part of the plaintiff, or of the absence of negligence on the part of the defendant, is deducible from the undisputed facts and circumstances proved. Hoye v. Railway Co., 62 Wis. 666, 23 N. W. Rep. 14. From the facts established by the indisputable evidence we are satisfied that under this rule the defendant, in respect to this ice on the walk, was not guilty of any culpable negligence, and that the plaintiff contributed to his own injury by his want of ordinary care. Without detailing the testimony, the facts established by it appear to be as follows: On the 26th day of January, 1892, between 9 and 10 o'clock in the forenoon, the plaintiff, without any special business, and not hurried, was walking along the walk on South Blair street of the city, near the place of business of Warren & Sorenson, until he came to a place where there was ice a few feet wide on the walk, which was an inch or two thick where travelers walked and some thicker next to the adjacent building, and gradually run out about the middle of the walk, or perhaps nearer the outside of the walk. It was nearly level, and was not piled up, except near the building. On this ice he slipped and fell, and broke his left arm. The ice at that place was caused by the melting of ice and snow on the roofs and in the gutters of that building, which was one story in front and two in the rear, during the day, and spattering down on the walk; and at night it froze up and made this patch of ice. This was usual in the winter, and there were other similar places on the walks, and from a similar cause. There was nothing in the construction of the building or in its condition upon which any culpable negligence of its owner or of the city could be predicated. The walk at that place had a slope lengthways, according to the established grade of the street, and an inclination of a few inches towards the gutter, but only such as is common with all sidewalks properly constructed. From the description by the several witnesses of this ice it appears to have been formed by the melted snow and ice on the adjacent building, by the warmth of the day, spattered or sprinkled down on the walk next to the building, and towards night, and at night, by freezing as it fell, and making naturally thicker ice near the building, and the water running off towards the gutter, the ice became thinner and thinner, until it was stopped running by freezing near the middle of the walk. Its average thickness could not have exceeded an inch. From this description any one may be reminded of many similar places on the walks in the winter. If it should be held that it was the duty of the city to remove the ice from all such places on the walks in the winter, it would be a duty of impossible performance, with all the manual labor and machinery within its command. The gutters and pipes of buildings are liable to freeze up in this latitude in the winter, and the melting snow and ice, caused by the heat of the sun in the daytime, will naturally and necessarily fall over the...