Padden v. City of Milwaukee

• Decision Date: 08 February 1921
• Parties: PADDEN v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

173 Wis. 284

181 N.W. 209

PADDEN

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

February 8, 1921.

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

Action by Theresa Padden against the City of Milwaukee. From order sustaining demurrer to complaint, plaintiff appeals. Affirmed.Cannon, Waldron & Nebel, of Milwaukee (A. W. Richter, of Milwaukee, of counsel), for appellant.

Clifton Williams, City Atty., and John M. Niven, 1st Asst. City Atty., both of Milwaukee, for respondent.

JONES, J.

The portion of the complaint which alleges the insufficiency of the walk in question is as follows:

“Said plaintiff further shows to the court, upon information and belief, that for some time prior to the said 25th day of November, A. D. 1917, said defendant city had maintained what was commonly known as and called a water bubbler, at a point 12 feet 3 1/2 inches west of the lot line of Eleventh avenue and north of said curb line on National avenue 1 foot 4 inches; that some time prior to said 25th day of November, A. D. 1917, said bubbler had been removed, and that the pipe to which said bubbler had been connected at said point 12 feet 3 1/2 inches west of said lot line and 1 foot 4 inches north of said curb line on National avenue had negligently been permitted by said defendant city to extend and project above said cement sidewalk 1 5/8 inches; that the cap or covering of said pipe was 2 3/4 inches; that otherwise said cement walk was smooth and unobstructed; that said projection of 1 5/8 inches was in no wise protected and constituted a dangerous defect in said cement walk--all of which was well known to the officers and agents of said defendant city.”

There is also this allegation:

“That located upon the curb of the south line of said cement walk on said National avenue in a direct north and south line with the westerly lot line of said Eleventh avenue was a United States mail box.”

The complaint was so framed as to present the question of liability as a matter of law, and by stipulation it was agreed that two photographs of the premises might be used as though made a part of the complaint. These photographs show that the projection complained of is near the outer edge of the walk, in line with the mail box mentioned in the complaint and outside the most traveled part of the walk.

[1] The question here presented is whether a projection 1 5/8 inches high and 2 3/4 inches wide near the edge of a walk in a city street, and out of the main line of travel, is such a defect as to be actionable under section 1339, Stats. Counsel for the appellant recognize the full force of the decisions of this court in cases where projections a little higher than the one in question have been held not to constitute defects, but seek to distinguish these cases by urging in the first place that in this case the projection is so small in area as not to be easily visible, and therefore is more dangerous. We do not find that the decisions have recognized any such distinction, and we are not inclined to rule that a projection in a walk 2 3/4 inches in width is a defect while a similar one considerably wider is not. Actions where persons are injured by striking some slight obstruction in a walk generally arise from accidents occurring in the nighttime and when the traveler has not observed the alleged defect.

In the leading case on the subject in this state, Kleiner v. City of Madison, 104 Wis. 339, 80 N. W. 453, the accident was caused by tripping in the night on an apron made of planks and cleats extending across the walk and not exceeding 2 inches in height. In the case of Kawiecka v. City of Superior, 136 Wis. 613, 118 N. W. 192, 21 L. R. A. (N. S.) 1020, the obstruction was planks extending across the walk and 2 inches high. According...