Kenyon v. City of Mondovi

• Decision Date: 10 December 1897
• Citation: 98 Wis. 50,73 N.W. 314
• Parties: KENYON v. CITY OF MONDOVI.
• Court: Wisconsin Supreme Court

98 Wis. 50

73 N.W. 314

KENYON

v.CITY OF MONDOVI.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, Buffalo county; E. B. Bundy, Judge.

Action for personal injuries by Chester S. Kenyon against the city of Mondovi. From a judgment for the plaintiff, defendant appeals. Affirmed.

This is an action to recover for personal injuries suffered by the plaintiff by reason of a fall upon a sidewalk in the defendant city on the 21st of November, 1893. The fact that the plaintiff fell was not disputed, nor was it disputed that he suffered injuries thereby. A snowstorm was in progress at the time of the fall, and the plaintiff claimed that the fall was occasioned by slipping upon an accumulation of ice upon the sidewalk. It appears that there was a pump located in the sidewalk, between two and three feet from the outer edge thereof; and the plaintiff and his witnesses claim that there was a large accumulation of ice under the spout of this pump, a foot or more in depth, which extended out several feet from the outer edge of the pump, in a round and uneven form, and that it had been substantially in that condition for several days. The plaintiff claimed that as he approached the pump his attention was diverted by a friend passing by and speaking to him, and that from that fact, as well as the fact that it was snowing, he did not see the ice, and hence stepped upon it and fell. The defendant's evidence attempted to show that there was no ice about the pump, but that the plaintiff slipped upon the snow. A special verdict was rendered, by which it was found, in answer to appropriate questions: (1) That the plaintiff fell in the vicinity of the pump; (2) that there was at that place an accumulation of ice on the sidewalk, (3) resulting from the freezing of drippings from the pump, (4) forming a dangerous defect in the sidewalk; (5) that the plaintiff was injured by means of slipping on such ice; (6) that the ice would not be apparent to a person walking on the sidewalk, and exercising ordinary care; (7) that the officers of the city had no actual notice of the existence of such ice, (8) but that it had existed long enough for the officers to discover it and remove it, in the exercise of ordinary care; (9) that there was an incline of the walk, towards the street; (10) that the street gutter was lower than the sidewalk; (11) that the plaintiff could not have seen the ice, in the exercise of ordinary care, in time to avoid it; (12) that the plaintiff did not voluntarily attempt to pass over the walk when, in the exercise of ordinary care, he ought to have known it was dangerous; (13) that the ice was uneven and rounded in form; (14) that the plaintiff had no defect in his injured leg prior to his fall on the sidewalk; (15) that the defendant was guilty of want of ordinary care, which was the cause of the injury; (16) that the plaintiff was not guilty of the want of any ordinary care which contributed to his fall; (17) that the plaintiff's damages were $3,000. From a judgment for the plaintiff on this verdict, the defendant appeals.J. W. Whalen and W. H. Austin, for appellant.

S. G. & C. W. Gilman, for respondent.

WINSLOW, J. (after stating the facts).

1. A motion for nonsuit was made in this case, and overruled, and error is assigned upon this ruling. Examination of the record satisfies us that the case was one for the jury. The plaintiff was walking along in a snowstorm which might well conceal the...