Paulson v. Town of Pelican

• Decision Date: 09 April 1891
• Citation: 79 Wis. 445,48 N.W. 715
• Parties: PAULSON v. TOWN OF PELICAN.
• Court: Wisconsin Supreme Court

79 Wis. 445

48 N.W. 715

PAULSON

v.TOWN OF PELICAN.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Oneida county.

Action for personal injuries by Paul Paulson against the town of Pelican. Defendant appeals.Alban & Barnes, for appellant.

Miller & McCormick, for respondent.

ORTON, J.

This appeal is from an order overruling the demurrer to the complaint, on the ground that it did not state facts sufficient to recover. The following are the main facts stated in the complaint: The unincorporated village of Rhinelander, of over 1,000 inhabitants, is in the town of Pelican, and county of Oneida, and lawfully governed by the board of supervisors of said town. In said village is Davenport street, the center of which is used for travel by teams and vehicles, and the south side, next to the south line thereof, is used as a sidewalk for foot-travelers. That portion of said street lying between Brown and Stevens streets is a thoroughfare over which passes nearly all the travel between said streets, and the south side thereof, between said streets, is the thoroughfare over which passes nearly all the foot-travel between said streets. On the 6th day of March, 1889, and for a long time prior thereto, that portion of said street over which travelers on foot usually and commonly pass, as aforesaid, was in a dangerous and unsafe condition for such travel by reason of snow and ice having been left negligently to accumulate between said Brown and Stevens streets, and to become so uneven and slippery as to make travel over and along the same unsafe and dangerous. It was the duty of the defendant town to keep said street, and the whole thereof, between said points, in a reasonably safe condition for such travel; but it failed and neglected to do so, not withstanding it had notice of such defective condition, and knew that the same, between said streets, was unsafe and dangerous for travel on foot at the time aforesaid, and for a long time prior thereto had been. On the day aforesaid, and about 8 o'clock in the evening, the plaintiff was traveling over the sidewalk for foot-travel on said street, in a careful manner, and going from said Stevens to Brown street; and when at a point about mid way between said streets, owing to the aforesaid uneven and slippery condition of said street at that point, he, without any fault on his part, slipped and fell upon such walk, and in such manner that one of his legs was broken, and he was otherwise painfully bruised and injured. The main ground of the demurrer relied upon by the learned counsel of the appellant, on this appeal from the order, is that snow and ice, in an uneven and slippery condition on the walk, is not such a defect or want of repair as to entitle the plaintiff to recover for a personal injury caused by it. I think that we may reasonably infer, from the condition described in the complaint, that this walk had become uneven from use, by the snow, being more yielding in some places than in others, having sunk lower from the pressure of feet, which left an uneven and frozen surface, on which the traveler would be liable to slip or fall down. Such would not be the natural surface left by the falling snow or by freezing. Such a condition of the walk we understand this court has decided to be such a defect or want of repair that a traveler injured by it might recover, when he could not recover if the defect was simply the natural, even, and smooth surface of ice or snow. It would be analogous to a highway in the summer season, when its use or...