Smith v. Clayton Const. Co.

• Decision Date: 08 December 1925
• Citation: 206 N.W. 67,189 Wis. 91
• Parties: SMITH v. CLAYTON CONST. CO.
• Court: Wisconsin Supreme Court

189 Wis. 91

206 N.W. 67

SMITH

v.CLAYTON CONST. CO.^a1

Supreme Court of Wisconsin.

Dec. 8, 1925.

Appeal from Circuit Court, Milwaukee County; Otto H. Breidenbach, Judge.

Action by Elizabeth Smith against the Clayton Construction Company. Verdict for plaintiff. From an order changing answer in verdict, and a judgment for defendant, dismissing plaintiff's complaint, plaintiff appeals. Reversed, with directions.

Action was commenced for damages on account of personal injuries received by the plaintiff while walking along the sidewalk on one of the public streets in the city of Milwaukee, by reason of being tripped on a hose stretched across the walk by the defendant. The complaint charged negligence in the obstruction of the sidewalk.

The defendant denied negligence, and claimed contributory negligence on the part of the plaintiff. The cause was tried before the court and a jury, and a special verdict was rendered, as follows:

“Q. 1. Did the defendant fail to exercise ordinary care in placing its hose across the sidewalk at the time and place in question? A. Yes.

Q. 2. If you answer question No. 1 ‘Yes,’ then you may answer this question: Was such failure to exercise ordinary care the proximate cause of plaintiff's injury? A. Yes.

Q. 3. Did any want of ordinary care on the part of the plaintiff contribute to her injury? A. No.

Q. 4. If you find that the plaintiff should recover, at what sum do you assess her damages? A. $4,250.”

Thereafter the plaintiff moved for judgment on the verdict, and the defendant moved to change the answer to the first question from “Yes” to “No,” and to the third question from “No” to “Yes.” The court granted the motion to change the answer to the first question, and denied the motion as to the third question. Thereupon judgment was entered in favor of the defendant, dismissing the plaintiff's complaint. Plaintiff appeals from the order changing the answer in the verdict and from the judgment.

Cannon & Waldron, of Milwaukee (Levi H. Bancroft, of Milwaukee, of counsel), for appellant.

Walter F. Mayer and James E. Coleman, both of Milwaukee, for respondent.

CROWNHART, J. (after stating the facts as above).

The defendant was a contractor, and was engaged under contract in paving a public alley with concrete for the city of Milwaukee. To obtain water for its purpose the defendant attached a hose to a fire hydrant, and stretched the hose across the sidewalk on the east side of Fourteenth street in said city. The plaintiff, while walking north on the east side of Fourteenth street, along said sidewalk, tripped and fell over the hose, and sustained serious and permanent injuries.

The appellant contends that the placing of the obstruction on the sidewalk constituted sufficient evidence of negligence on defendant's part to take the question to the jury, and that the court erred in setting aside the verdict of the jury on that question.

[1][2][3][4][5][6] The general principles of law are well established. Sidewalks in cities are designed for the use of pedestrians, and they are required to be reasonably safe for that purpose. Any person who shall unreasonably obstruct a sidewalk, by placing materials thereon or across the same, so as to endanger the safety of travelers thereon, is liable for injuries proximately following therefrom. Travelers on sidewalks must use ordinary care to protect themselves from obvious dangers. But travelers on sidewalks in cities are not required to keep their eyes constantly on the sidewalk, but are required to use only such care as the great majority of pedestrians use under the same or similar circumstances. The courts quite uniformly hold that the attention of pedestrians may be diverted by various causes, and a mere temporary diversion does not subject the pedestrian to the defense of contributory negligence as a matter of law. It is a matter of common knowledge that pedestrians usually do have their attention diverted from the sidewalk by a multitude of occurrences in large cities. Show windows are attractively arranged to draw their attention; public conveyances in the street, which they desire to use, are watched for; they have their attention diverted to the observation of signs at street corners and other places, in order to ascertain their location and the places they are seeking. So these matters of obstructing streets and of negligence with reference thereto, and the contributory negligence of pedestrians, generally present questions of fact for the jury. Wheeler v. Town of Westport, 30 Wis. 392;Brunette v. Town of Gagen, 106 Wis. 618, 82 N. W. 564;Paulson v. Town of Pelican, 79 Wis. 445, 48 N. W. 715;Zoellner v. Fond du Lac, 147 Wis. 300, 133 N. W. 35;King v. Oshkosh, 75 Wis. 517, 44 N. W. 745;West v. Eau Claire, 89 Wis. 31, 61 N. W. 313;Weisenberg v. Appleton, 26 Wis. 56, 7 Am. Rep. 39;Denver v. Maurer, 47 Colo. 209, 106 P. 875;Lattimore v. Union Electric L. & P. Co., 128 Mo. App. 37, 106 S. W. 543.

[7] In this...