Hyer v. City of Janesville

• Decision Date: 16 December 1898
• Citation: 101 Wis. 371,77 N.W. 729
• Parties: HYER v. CITY OF JANESVILLE.
• Court: Wisconsin Supreme Court

101 Wis. 371

77 N.W. 729

HYER

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

Dec. 16, 1898.

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

Action by Victoria Hyer against the city of Janesville for personal injuries caused by the insufficiency and want of repair of a sidewalk. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The insufficiency in the sidewalk alleged consisted of an accumulation of snow and ice, three to ten inches deep on the walk for the whole width and for a considerable length thereof existing for several weeks prior to the injury, to the knowledge of the street commissioner, worn by reason of travel thereon uneven and rough and formed into high ridges. The circumstances of the injury, as alleged, were that plaintiff, while traveling with due care, struck her foot against one of the ridges of snow and ice, and was thereby made to fall upon the hard, irregular surface of the walk, severely bruising her back and head, and otherwise injuring her. The answer put in issue the allegations as to the insufficiency of the walk and pleaded contributory negligence. The evidence showed that the walk had been uniformly cleared off whenever there was a fall of snow during the winter, except it was not cleaned down to the plank surface, there being left some snow which, by tramping, had accumulated quite evenly to the depth of about two inches; that while in such condition it became soft, and was tramped over, leaving footprints therein, when it froze, leaving the walk in a hubby condition, there being depressions all over it to the depth that footprints would naturally make under such conditions. One of the plaintiff's witnesses said the walk was kind of icy, with lumps big as one's fist; that it was hard to walk on, that it had been soft, and people had walked on it, and then it froze leaving little bunches. Another witness said the walk was made rough by people walking on the soft snow, leaving footprints which froze; that the Tuesday before the injury the walk was not that way; that the depressions in the surface were caused by the heels of shoes going down to the counter. There was considerable evidence of like character. Soon after the accident and before any material change had taken place in the walk, it was photographed and the result was produced in evidence, corroborating what has been stated, except the indentations in the walk were not sufficient to be clearly perceptible in the photograph. It showed the walk covered with a thin coating of snow and ice, tramped to a uniform level for the whole width and not entirely smooth, but without irregularities, as stated, sufficient to be clearly perceptible in the picture. The evidence of how the accident occurred was that while plaintiff was walking on the sidewalk she suddenly fell backward, striking first on her hips, then on the back of her head near the top. The court was requested to direct a verdict in defendant's favor, which was refused. The jury rendered a verdict for plaintiff, on which judgment was rendered. There was a motion before judgment to set the verdict aside and for a new trial, which was refused, and the ruling duly excepted to.

F. C. Burpee and Wm. G. Wheeler, for appellant.

Mahoney & Cunningham and J. A. Aylward, for respondent.

MARSHALL, J. (after stating the facts).

Appellant contends that the trial court should have directed a verdict for defendant because of an entire failure of proof to sustain the allegations of the complaint, as regards failure of duty on defendant's part respecting the safety of the walk and that the injury complained of was occasioned thereby. The complaint states a case well within the authorities as to actionable failure of duty respecting sidewalks, by allowing an accumulation of snow and ice thereon in such form as to constitute an obstruction to public travel independent of a mere slippery or rough condition caused by ice and snow. It states that for a long time prior to the accident there was an accumulation of snow and ice from three to ten inches deep extending clear across the walk; that it was rough, uneven and in high ridges, and that such condition had existed for several weeks, but we look into the evidence in vain to find testimony to sustain such allegations. The most the evidence shows is that a few days before the injury there was a coating of about two inches in depth of snow, packed hard evenly over the walk by travel; that the walk had been in that condition for some time; that the weather turned warm causing the snow to become soft, wet and sloppy, and then suddenly turned cold, causing ice to form with such footprints therein as would naturally be made by travel under such conditions. The bed of ice and snow three to ten inches deep, mentioned in the complaint, does not appear to have been observed by witnesses, nor the high ridges spoken of, nor the long-continued defective condition. True, the evidence shows that the walk had not been entirely free from snow since soon after the commencement of the winter season, but it was free except as stated. A small amount accumulated from frequent falls of snow so that, in its tramped condition, it was about two inches deep. That did not in any way interfere with public travel, or constitute any obstruction to such travel, or defect in the walk. It was such an accumulation of snow as is usually found on walks in the resident portions of cities and villages in the winter season in this climate.

If the walk was defective at all at the time of the injury, it was wholly caused by the sudden freezing of the soft, slushy snow, spread evenly over it except as it was indented by footprints therein. Reasonable care did not require the walk to be scraped clean, down to the planking, or that mere footprints made in the soft snow and frozen in that condition should be removed. They did not cause any obstruction to or render travel on the walk...