Hollan v. City of Milwaukee

• Decision Date: 31 May 1921
• Citation: 182 N.W. 978,174 Wis. 392
• Parties: HOLLAN v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

174 Wis. 392

182 N.W. 978

HOLLAN

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

May 31, 1921.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Elizabeth Hollan against the City of Milwaukee. From judgment dismissing the complaint, plaintiff appeals. Affirmed.

Action for damages for personal injuries. Trial before a jury in the civil court for Milwaukee county resulted in judgment for plaintiff upon a special verdict. On appeal to the circuit court judgment was reversed, and judgment entered dismissing the complaint, upon the ground that defendant's motion for a directed verdict should have been granted. Plaintiff appeals.W. C. Seefeld, of Milwaukee, for appellant.

Clifton Williams, City Atty., and John M. Niven, First Asst. City Atty., both of Milwaukee, for respondent.

JONES, J.

Appellant was walking along a 6 feet wide cement sidewalk on Sixteenth street in the city of Milwaukee on a winter evening. It was “not light.” She had seldom used this street, and consequently was not well acquainted with the condition of the walk. She came to an alley crossing of which she knew. The alley was paved with cobblestones. The crosswalk was constructed as follows: There were two rows of level flagstones stretching across the alley connecting the ends of the sidewalk on either side. Each row was slightly over a foot wide, and there was a space of a little over a foot in width between them paved with cobblestones. Outside of the flagstones on either side was the cobblestone pavement sloping away from the flagstones so as to facilitate the passage of vehicles. The ends of the cement walk were sloped down to the level of the crossing, the flagstones being 4 inches below the level of the walk, the slope of the walk to the flagstones being 4 inches in 14 1/2 inches.

According to appellant's testimony she stepped from the regular level of the cement walk at the point where the downward slope commenced about 25 inches, and stepped, as she later found, upon a cobblestone outside the area of the flagstones. The region of this cobblestone is 7 inches below the level of the cement walk at the point from which she stepped; and this particular stone is 8 by 7 inches, projects 2 inches at its highest point above the level of the adjacent ground, has a sloping surface, and lies between the flagstones and the inner edge of the cement walk as extended across the alley, being 12 inches from the latter line. The alley was icy, and she slipped upon the stone and fell, receiving injuries to her arm.

The jury by its special verdict found that appellant did not fall by reason of the slippery condition of the walk, but that the walk was in an insufficient condition and not reasonably safe for pedestrians, and that this was the proximate cause of the injury. The trial judge believed that a jury question was presented and gave judgment for appellant, but the circuit court, on appeal, held that the testimony did not show an actionable structural defect in the alley crossing.

Although the complaint claimed as part of the insufficiency of the walk that it was icy, the plaintiff's attorney expressly waived at the trial any claim on this ground and based the cause of action on the faulty construction of the walk. In a recent case Mr. Justice Owen said:

“As was pointed out in Wheeler v. Westport, 30 Wis. 392, almost innumerable circumstances, such as the topography of the locality, the development of the community, the standard of road construction attained therein, the amount and character of traffic, etc., are to be taken into consideration in determining whether a given condition renders a highway defective. Such is still the law. That which will render one highway defective will not condemn another.” Branegan v. Verona, 170 Wis. 137, 140, 174 N. W. 468, 470.

[1][2] This rule applies to sidewalks in cities as well as to country highways. In the present case the walk was in a residential district remote from the most traveled streets in the business center. The portion of the walk across the alley intended for the main line of travel consisted of two rows of flagstones and the cobblestones between, all practically level. It is not claimed that there was any defect arising from the fact that there was a slope of 4 inches in a distance of 14 1/2 inches on the cement walk approaching the flagstone portion of the walk. But it is claimed that a slope of 7 inches to the point where the accident occurred is a defect. The testimony and photograph in evidence show...