Kawiecka v. City of Superior

• Decision Date: 10 November 1908
• Citation: 118 N.W. 192,136 Wis. 613
• Parties: KAWIECKA v. CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

136 Wis. 613

118 N.W. 192

KAWIECKA

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Superior Court, Douglas County; Charles Smith, Judge.

Action by Franciska Kawiecka against the city of Superior. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an appeal from a judgment entered in pursuance of an order sustaining a demurrer ore tenus to the complaint in an action brought against the city of Superior for damages for personal injury alleged to have been caused by a defective sidewalk on a bridge in that city. The complaint alleged, among other things, that during the month of July, 1905, the city rebuilt a portion of the sidewalk on said bridge by nailing planks two inches in thickness to the upper side of the walk as theretofore constructed, and permitting the other portion of the walk to remain unchanged until September 4, 1905, when the accident happened upon which suit was predicated. In consequence of such inaction on the part of the city, there was an abrupt drop of two inches, going in one direction, and an abrupt ascent of two inches, going in the opposite direction. The accident occurred about 9 o'clock in the evening, and the plaintiff alleged that, in passing over the portion of the walk which was not rebuilt to that which had been, her foot came in contact with the edge of the two-inch plank nearest to the portion of the walk not rebuilt, and that in consequence she tripped and fell sustaining injuries thereby. The complaint further alleges that the bridge in question was one-half mile in length, and that the sidewalk thereon was level from one end to the other as it existed before the partial repairs were made, and that it was one of the principal public highways in the city of Superior.Grace & Hudnall, for appellant.

Thos. E. Lyons and T. L. McIntosh, for respondent.

BARNES, J. (after stating the facts as above).

Generally speaking, insufficiency or want of repair in a highway is a question of fact for the jury, under instruction from the court as to what is meant by these terms in the statute. Wheeler v. Town of Westport, 30 Wis. 392. And the question is always one for a jury, unless conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy. When the conditions shown are such that different minds may draw different inferences and arrive at different conclusions, the jury, and not the court, must make the ultimate determination. Prahl v. Town of Waupaca, 109 Wis. 299, 85 N. W. 350. Undoubtedly defects in a highway may be relied upon as a basis for recovery for injuries sustained, in reference to which it is the duty of the court to hold as a matter of law that such alleged defects do not constitute an insufficiency or want of repair within the meaning of the statute. Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183; s. c. 27 Wis. 191;Kleiner v. City of Madison,...