Schroth v. City of Prescott

• Decision Date: 22 April 1887
• Citation: 68 Wis. 678,32 N.W. 621
• Parties: SCHROTH v. CITY OF PRESCOTT.
• Court: Wisconsin Supreme Court

68 Wis. 678

32 N.W. 621

SCHROTH

v.CITY OF PRESCOTT.

Supreme Court of Wisconsin.

April 22, 1887.

The plaintiff in this case, by reason of her personal injuries, was confined to her bed for three weeks, and went on crutches for three weeks, suffered a great deal of pain during that time, and still suffers during a change in the weather, and the injury will be, to some extent, permanent. The opinion states the facts.F. L. Gibson, for respondent.

E. H. Ives, for appellant.

TAYLOR, J.

This is an action to recover damages of the city for an injury to the respondent, caused by falling upon the sidewalk of one of the principal streets of said city. The respondent claims that she fell because her foot became fastened in a hole or depression in the walk, and that she was severely injured by such fall. There is no dispute about the fact of her falling on the walk and injuring herself. The only material questions of fact in the case are whether she fell by reason of getting her foot fastened in the hole or depression in the walk, and, if she did, whether such hole or depression in the walk was such a defect as renders the city liable for an accident so resulting therefrom. It is also urged by the appellant that there was not sufficient evidence in the case to charge the city with notice of the defect, if there was one, in the walk before the accident happened.

The learned counsel for the appellant has prepared a very full and fair statement of the whole evidence in the case, and he insists that, upon a fair consideration of that evidence, this court should hold that the plaintiff has utterly failed to make out a case against the city. He makes his points-- First, that there was not a defect in the walk, such as should charge the city with negligence; and, second, that the evidence fails to show that the city had notice of the alleged defect before the accident happened.

This case was in this court upon a former appeal, (63 Wis. 652, 24 N. W. Rep. 405;) and this court then held that there was sufficient evidence then produced to carry the case to the jury both upon the question of the defect in the walk, and notice thereof to the city. By an examination of the evidence as presented by the record on the former appeal, it will be seen that it certainly did not make any stronger, and, in some respects, not as strong a case in favor of the plaintiff upon these questions as the evidence in the present case. The evidence in this case shows that the sidewalk was made of two-inch planks laid lengthwise with the walk; that, at the place where the plaintiff fell, the edge of one of the planks had rotted away for a space of from two and a half to three inches in width and of a depth of an inch to an inch and a half, extending lengthwise about a foot or more; that this defect had remained nearly in the same condition for several weeks before the accident; and that sometimes the depression would be filled with dirt, so that it was not very visible, but after a rain the dirt would be washed out, and the defect become quite visible. The evidence also shows that, just before the time the accident happened, there had been considerable rain, and the dirt had been washed out of the depression...