Salzer v. City of Milwaukee

• Decision Date: 16 November 1897
• Citation: 97 Wis. 471,73 N.W. 20
• Parties: SALZER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

97 Wis. 471

73 N.W. 20

SALZER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Thomas Salzer against city of Milwaukee for personal injuries. Plaintiff had judgment, and defendant appeals. Reversed.

The action is for the recovery of damages for an injury which the plaintiff received by falling upon an icy sidewalk. The evidence tended to show that, for a long time prior to plaintiff's accident, snow and ice had been suffered to remain on the sidewalk, until it had become a large accumulation, at the place of the accident, where, by reason of the travel passing over it, it had become uneven, slippery, and dangerous; that, on the day preceding the accident, there had been a new fall of snow, accompanied by a thawing condition, which melted the old snow, and removed much of it; that travel over the new snow and the slush of the old made the whole uneven and full of deep tracks; that, during the night previous to the accident, the weather turned suddenly cold, and caught this soft snow and slush in this condition, and turned it into hard and glassy ice, with all this unevenness upon it. During the next morning, the plaintiff, in attempting to pass over it, fell, and was injured. He knew of its condition before he came upon it. There were a demurrer ore tenus, motions for a nonsuit, and for a new trial, all overruled. There were a special verdict and a judgment for the plaintiff, from which the defendant appeals.Howard Van Wyck, for appellant.

John J. Gregory and Thomas H. Dorr, for respondent.

NEWMAN, J. (after stating the facts).

The appellant alleges for error: (1) The overruling of the demurrer ore tenus; (2) the overrulingof the motion for a nonsuit; (3) the overruling of the motion for a new trial; (4) errors in the charge to the jury; and (5) in refusing to submit, in the special verdict, questions requested by the defendant.

1. The point urged against the adequacy of the complaint is that it alleges merely an icy and unsafe condition of the sidewalk at the time of the accident, caused by a sudden change of weather. It is urged that the defendant cannot be held responsible for that condition. It is true that, for a defect of a sidewalk which is mere iciness or slipperiness, produced by natural causes, the city is not responsible; yet when such condition concurs with a previous defect, for which the city is responsible, the city is liable for damages. Cook v. Milwaukee, 24 Wis. 270;Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. 906;Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. 25;Paulson v. Town of Pelican, 79 Wis. 445, 48 N. W. 715;Chamberlain v. City of Oshkosh, 84 Wis. 289, 54 N. W. 618;Koch v. City of Ashland, 88 Wis. 603, 60 N. W. 990;West v. City of Eau Claire, 89 Wis. 31, 61 N. W. 313. Also, see Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642;Tobey v. City of Hudson, 49 Hun, 318, 2 N. Y. Supp. 180;Johnson v. Village of Glen Falls (Sup.) 16 N. Y. Supp. 585;Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186;Wyman v. City of Philadelphia, 175 Pa. St. 117, 34 Atl. 621;Ayres v. Village of Hammondsport, 130 N. Y. 665, 29 N. E. 265. The complaint alleges such previous defective condition by reason of snow and ice which had been suffered to accumulate there, in an uneven, slippery, and dangerous condition. It also alleges that such condition had continued for a long time. It was not error to overrule the demurrer ore tenus.

2. The motion for a nonsuit was based upon the premise that the plaintiff's own evidence proved his contributory negligence, in that he attempted to pass over the dangerous place, knowing of its condition. This is said to amount to an assumption of the risk, and contributory negligence, as matter of law. But, undoubtedly, the weight of authority is that one may, without imputation of negligence, attempt, in the exercise of due care, to pass over a place of known danger. It is a question for the jury whether due care is observed, and whether the attempt itself is negligence. Several of our own cases are to that effect. Kelley v. Town of Fond du Lac, 31 Wis. 179;Kenworthy v. Town of Ironton, 41 Wis. 647;Richards v. City of Oshkosh, 81 Wis. 226, 51 N. W. 256;Cumisky v. City of Kenosha, 87 Wis. 286, 58 N. W. 395. See, also, Beach, Contrib. Neg. § 273, and the cases cited in the notes. There was no error in refusing the nonsuit.

3. Under this general assignment of error are several specifications of specific error: (a) That the special verdict does not find whether a notice of the accident, under section 1339, Rev. St., was served on the defendant. The answer to this objection is...