Sambs v. City of Brookfield

• Decision Date: 07 January 1975
• Docket Number: No. 301,301
• Citation: 66 Wis.2d 296,224 N.W.2d 582
• Parties: Raymond J. SAMBS, Plaintiff-Respondent, v. CITY OF BROOKFIELD, a Municipal Corp., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 582

224 N.W.2d 582

66 Wis.2d 296

Raymond J. SAMBS, Plaintiff-Respondent, v. CITY OF BROOKFIELD, a Municipal Corp., Defendant-Appellant.

No. 301.

Supreme Court of Wisconsin.

Jan. 7, 1975.

Hippenmeyer, Reilly & Arenz, Waukesha, for defendant-appellant.

V. John Burggraf, Milwaukee (Wickert & Fuhrman and Aaron Belongia, Milwaukee, of counsel), for plaintiff-respondent.

CONNOR T. HANSEN, Justice.

This appeal presents issues both as to determination of causal negligence on the part of the defendant and the trial court's finding of waiver of the statutory limitations of liability by the city. Therefore, we deem it desirable to review the evidence in considerable detail. The issues raised on the negligence trial and the waiver trial will be considered separately.

NEGLIGENCE TRIAL.

On the evening of February 20, 1965, the plaintiff and his friends, Nowak, Thomas Wayne Kurth, Dale Smith and Larry Pfeil, went to a beer bar in Ixonia, Wisconsin, in Nowak's car. After drinking a few shorty beers, they left the bar at approximately 12:30 a.m., February 21, 1965, and stopped for gas in Oconomowoc. Nowak asked Smith if he would like to drive, which Smith did until he and Pfeil had been let off at their homes. Nowak then resumed the driving and was in the process of taking the plaintiff to his home on Lisbon Road when the accident occurred.

Nowak testified that he turned off Calhoun Road onto Lisbon Road and was proceeding in an easterly direction at approximately thirty to thirty-five miles per hour. Plaintiff was lying on the back seat of the car asleep, and Kurth was in the front seat also asleep. Nowak testified that the night was clear and that the roads were dry. He had not seen any ice on the roads prior to reaching Lisbon Road. However, as he proceeded east on Lisbon Road and as he started to climb a slight incline, the car caught a rut in the road and started pulling to the right shoulder. Nowak responded by turning the wheel but could not prevent the car from going into a spin and striking a utility pole some 400 feet east of where the car first began to slide.

The plaintiff crushed two vertebrae and severed his spine in the accident and is now paralyzed from his waist down.

The investigating patrolman, now Sergeant Robert Wolterstorff, who was called by the plaintiff, testified that he found no ice ruts near the scene of the accident, nor water on the road, but that the road was icy with frost. This testimony was disputed by that of John Nowak, the driver's father, also called by the plaintiff, who stated that he found ice ruts and glare ice on Lisbon Road near the scene of the accident during his inspection of the scene at 10 a.m. on February 21, 1965. John Nowak also took pictures, allegedly on Monday, February 22, 1965, showing ice on Lisbon Road and the city work crews using a steam hose to free the ice from the culvert under the road so that the water which had accumulated on the surface would drain off.

The defendant called the city street superintendent, Robert L. Leonard, who produced records indicating that the only steaming done in the area was on March 1, 1965, not February 22, 1965. It was noted, however, that there was no measurable precipitation between February 21 and March 1, 1965, and that the temperature had remained constantly below freezing during that period.

The plaintiff also called Audrey and Clyde E. Dundon, who lived near the scene of the accident on Lisbon Road. They both testified that the driveway culverts on the south side of the road were inadequate and that the drainage ditches overflowed onto the road every time there was a substantial thaw. Audrey Dundon stated that traffic going through the water would spread it all over the road. They testified that they had complained to the city about the problem on numerous occasions in the twenty-two years they lived there, but that nothing was ever done. This testimony was also confirmed by George J. Scherer who lived in the area and stated that the road was frequently covered by water during the winter months.

Roland A. Kohlbeck, a chief sanitary engineer for a private consulting firm, also testified for the plaintiff. Kohlbeck stated that in his opinion the culverts under the driveways on the south side of Lisbon Road were of inadequate size to handle the flow of water to be anticipated from a thaw of the watershed area. The inadequate size contributed to the likelihood that they would be blocked by ice. He stated that the undersized culverts, or blocked culverts, or freezing conditions, or a combination of those factors, would prevent the water from going under the road in the box culvert provided. It was his conclusion that the unseasonably warm temperatures experienced on February 20, 1965 (48 degrees) caused a large run-off in the area which the culverts were unable to handle, causing flooding on the road. Given flooding on the road, and rapidly dropping temperatures (40 degrees at 9 p.m. to 26 degrees at 3 a.m.), the traffic on the road would break the surface ice on the water, track the water with the tires to the east, which water would refreeze at different levels creating ruts. The smallest of the driveway culverts which Kohlbeck thought to be inadequate was located 440 feet from the pole which Nowak's car hit. The spot which Nowak indicated on a scale model exhibit as being the place where he first skidded was 400 feet from the pole.

The plaintiff introduced an agreement between the defendant and the county of Waukesha showing that the defendant had responsibility for maintaining Lisbon Road and the drainage system. Plaintiff also called Forrest G. Robinson, the city engineer, adversely, who testified that replacement of the driveway culverts would normally be done by the defendant-city.

The defendant, upon cross-examination of John Nowak, established that the ice ruts he had seen on February 21, 1965, after the accident, were in the area of the box culvert which ran under Lisbon Road some 300 feet west of the point where the car allegedly first began to skid. He stated the whole road was icy, but that he saw no ruts or water crossing the road where the skidding allegedly occurred.

Professor Paul Roys, a physicist, testified in behalf of the defendant. He stated that the dew point and temperature changes on the night in question were hypothetically right for the formation of frost. The defendant also established that numerous accidents occurred the night in question because of alleged icy conditions and that the sanding trucks had been sent out at 12:35 a.m. on the 21st because of radioed reports of icy spots around the city.

The defendant also introduced the testimony of Dennis D. Perry, an engineering technician but not an engineer, who worked for the defendant, to the effect that Kohlbeck was incorrect in his measurements of the box culvert going under Lisbon Road (24 instead of 18 ) and of the driveway culvert immediately east of the box culvert (18 instead of 15 ).

Based on this and other testimony, the jury found that the city was 30 percent causally negligent in failing to properly maintain and repair the highway and surface drains.

The following issues are raised on the question of the causal negligence of the defendant:

1. Did the trial court err in failing to instruct the jury as to the three-week requirement of sec. 81.15, Stats., for 'natural' accumulations of ice?

2. Did the trial court err in failing to submit the question of plaintiff's contributory negligence to the jury?

3. Was the evidence sufficient to sustain the verdict that the defendant was causally negligent in breaching its duty to repair and maintain the road and drainage systems?

NATURAL ACCUMULATION.

The trial court denied the request of the defendant for an instruction in regard to the three-week requirement of sec. 81.15, Stats., and as to the definition of 'natural.' Sec. 81.15 provides, in part:

'81.15 Damages caused by highway defects; liability of town and county. If damages happen to any person . . . by reason of the insufficiency or want of repairs of any highway which any . . . city . . . is bound to keep in repair, the person sustaining such damages shall have a right to recover the same from such . . . city . . .. The amount recoverable by any person for any damages so sustained shall in no case exceed $25,000. No action shall be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless such accumulation existed for 3 weeks.'

This court has held that the three-week requirement of the statute applies only where the accumulation is 'natural' as opposed to 'artificial.' Kobelinski v. Milwaukee & S. Transport Corp. (1972), 556 Wis.2d 504, 202 N.W.2d 415; Stippich v. Milwaukee (1967), 34 Wis.2d 260, 149 N.W.2d 618; Laffey v. Milwaukee (1958), 4 Wis.2d 111, 89 N.W.2d 801; Laffey v. Milwaukee (1959), 8 Wis.2d 467, 99 N.W.2d 743.

The plaintiff contended that the accident occurred because improperly maintained or otherwise inadequate drainage facilities caused water to spread on the road which then froze forming ruts. The defendant contended that the accident was caused by the driver's negligence coupled with slippery conditions on account of frost on the road.

As early as 1884, this court held that where a correct instruction upon a material point is requested in time, and there is evidence to support it, it is error to refuse it unless an equivalent instruction is given. Sailer v. Barnousky (1884), 60 Wis. 169, 171, 18 N.W. 763.

While the trial judge could have appropriately given the requested instruction, based on the defendant's evidence of frost on the road, his failure to do so does not constitute prejudicial error. This is particularly so in view of the fact that the jury, by its verdict, accepted the evidence of the plaintiff and rejected that of the defendant.

However, the defendant also contends that even under the...