Laue v. City of Madison

• Citation: 57 N.W. 93,86 Wis. 453
• Parties: LAUE v. CITY OF MADISON.
• Decision Date: 28 November 1893
• Court: United States State Supreme Court of Wisconsin

86 Wis. 453

57 N.W. 93

LAUE

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Nov. 28, 1893.

Appeal from circuit court, Iowa county; George Clementson, Judge.

Action by Henry Laue against the city of Madison. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

On the evening of November 21, 1889, the plaintiff fell and broke his arm, and was otherwise injured, by reason of an alleged defective sidewalk. January 28, 1890, the plaintiff notified the city and its mayor and clerk of such injury and defect at the place described in the opinion, and also that the plaintiff claimed damage by reason thereof in the sum of $5,000. February 21, 1890, this action was commenced to recover such damages, by the service of the summons and the original complaint. That complaint was amended September 24, 1891. The answer put in issue the negligence of the defendant. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $1,800. From the judgment entered thereon, the defendant brings this appeal.B. W. Jones and C. M. Morris, for appellant.

Olin & Butler, for respondent.

CASSODAY, J., (after stating the facts).

It appears from the record that Livingston street runs in a southeasterly and northwesterly direction, and crosses Williamson street at right angles; that Jenifer street is parallel to Williamson street, and is the next street southeasterly therefrom; that on the south corner of the junction of Livingston and Williamson streets there is a store building and dwelling house, fronting northwesterly on Williamson street, occupied by one Deike; that the sidewalk on the southwesterly side of Livingston street runs along within a few feet of the building; that there was at the time a picket fence, with a board along the bottom, separating the walk from the yard, at or near the rear end of the building; that the walk along there was at the time from 4 to 5 3/4 feet in width; that the earth on the side of the walk towards the building was 3 or 4 inches higher than the walk, and flush with it; that opposite the rear end of Deike's building the walk was about 5 feet higher than the sidewalk on Williamson street; that the pitch or descent in the walk where the accident happened was about 11 inches in 10 feet on the outer edge of the walk, and a little more than that on the inner edge; that the descent was less rapid nearer Williamson street; that the average slope towards Williamson street was about 11 1/2 inches in 10 feet; that the walk along Livingston street follows the natural surface of the ground; that the sidewalk on Jenifer street was about 12 feet higher than the sidewalk on Williamson street; that at the place of the accident the walk was 5 1/2 feet wide, and pitched or descended towards the street 5 1/4 inches on the full width, or about 1 inch to the foot; that the street was 2 or 3 feet lower than the walk; that the walk was constructed of old boards, originally an inch in thickness, laid crosswise upon three stringers; that there were no slats on the walk; that it was not a firm walk, but was springy in the center; that at the time of the accident the boards had rotted down so that they were not more than three-fourths or five-eighths of an inch in thickness in the center, and the edges and bottoms were entirely rotten; that the sidewalk was sunk in the ground at the point of the accident so that the boards projected into the bank or ground towards the building; that there was a gradual slope from the sidewalk up into Deike's back yard; that in time of rain the walk at the place of the accident was subject to be overflowed by the water and mud falling into the yard; that after a rain storm there was generally a broad streak across the walk, of a rather slimy, gummy substance, of dirt and moss and stuff mixed; that there was no gutter or other provision to prevent this; that the water that fell in the yard and on the roof of the building went right over the sidewalk; that the rain carried mud along, and left it on the sidewalk, and made it slippery after a rain storm; that this condition of things had existed for years; that at the time and place of the accident the walk was wet, muddy, and slippery; that about 7 o'clock on the evening of November 21, 1889, the plaintiff, who was at the time 53 years of age, started from his home, on Jenifer street, to go to Deike's store, to buy groceries; that in going he went along the sidewalk in question towards Livingston street; that it was a rainy day, and was dark and raining at the time; that he was carrying an umbrella and a half-gallon jar; that the wind was coming up from Williamson street, so that he held the umbrella just before his face; that when he came to the corner of Deike's building his feet slipped out from under him, and he fell and broke his arm, and was otherwise injured. Such is a general outline of the evidence in support of the verdict.

1. It is contended that the complaint and evidence should have been confined strictly to the precise defects described or mentioned in the notice, and that the admission of evidence of other defects was error. No question is made that the notice did not accurately describe the place of the accident; nor that it did not state the absence of slats or cleats; nor that it did not state that the boards were old, and by long usage had become thin, rotten, and weak; nor that it did not state that whenever it was wet or moist, by rain, it became exceedingly slippery, and very unsafe, insecure, and dangerous to pass over; nor that it did not state that the sidewalk, at the time and place in question, was very steep, and unsafe to walk over; nor that it did not state that, for some distance on either side of the same, it was very steep, and of dangerous descent. All those things were stated. But it did not state which way the walk descended, nor that the bank or ground on the lot side came up flush with the ends of the boards on the walk, so that the water from the yard and the roof of the building naturally ran down, and carried mud upon the walk, nor that the walk was sunk in the ground, and the boards upon it springy. Should the evidence of these things, not so stated, have...