Summary
In Pias v. Racine (1953), 263 Wis. 504, 58 N.W.2d 67, where there was a depression of 1 7/8 inches between the slabs of a concrete walk, this court held that the question of the insufficiency of the sidewalk was for the jury because of other material circumstances.
Summary of this case from McChain v. City of Fond du LacOpinion
March 5, 1953 —
March 31, 1953.
APPEAL from a judgment of the circuit court for Racine county: ELMER D. GOODLAND, Circuit Judge. Reversed.
For the appellant there was a brief by Flynn Greenquist of Racine, and oral argument by Kenneth L. Greenquist.
For the respondent there was a brief and oral argument by Thomas P. Corbett, city attorney.
Action by plaintiff Mildred Pias against defendant city of Racine to recover damages for injuries sustained in a fall allegedly caused by a defective sidewalk. After the parties had rested defendant moved for a directed verdict; the court reserved its ruling on the motion and submitted the case to the jury which returned a verdict favorable to plaintiff. Thereafter the court granted defendant's motion for a directed verdict, and from a judgment dismissing the complaint, plaintiff appeals.
The sidewalk in question is located west of an old vehicular bridge now open for pedestrian use only. The westerly exit from the bridge consists of a wooden sidewalk which adjoins the concrete and asphalt sidewalk upon which plaintiff fell. The wooden section is supported by a large timber which projects under the north half of the adjoining concrete section, raising the north edge of the concrete to a transverse lateral pitch of approximately 20 per cent. The slabs thus affected are broken longitudinally and an asphalt surface was applied to the south half of both blocks which are involved here. In about the center of the walk at a point where the two slabs abut each other, there is a depression, or a difference in elevation, of one and seven-eighths inches. We are printing herewith a copy of plaintiff's Exhibit 1 which shows the condition of the sidewalk better than words can describe it.
On December 6, 1950, at about 6:45 a. m. plaintiff was walking on the sidewalk described above on her way to work, and just before the fall her attention was momentarily diverted by a call. Her testimony was that her left foot skidded or tripped into the depression between the blocks, she lost her balance and attempted to brace herself on her right foot which was on the tilted concrete portion of the walk. The right foot slipped and she fell, landing on her right arm and hand, sustaining a fracture at the elbow.
During the trial the court and the jury viewed the sidewalk. The jury unanimously found that it was insufficient and in want of repair and that such condition was the proximate cause of the injury; that the condition had existed for a sufficient length of time that the city should have discovered it and repaired it; that plaintiff was not negligent in failing to use care in walking upon the sidewalk; and that the defendant's negligence was 100 per cent.
In ruling on defendant's motion for a directed verdict the trial court concluded, on the basis of McCormick v. Racine (1938), 227 Wis. 33, 277 N.W. 646, that plaintiff had failed to show an actionable defect in the sidewalk. It said:
"While the general area of the bridge and western approach for pedestrians would naturally excite one's prejudice against the city of Racine for permitting such an over-all condition to exist, the court is of the opinion that the depression and change in elevation at the point where plaintiff fell comes within the rule laid down in McCormick v. Racine, supra, and does not constitute such an insufficiency or want of repair as to come within the meaning of sec. 81.15, Stats."
The McCormick Case was before us on appeal from an order overruling a demurrer, and the only fact alleged regarding the defect was that "one of the cement squares of the sidewalk was raised above the square immediately adjacent thereto so as to constitute an obstruction, whereby the surface of the walk was abruptly raised two and three-eighths inches at that point." It was there held that this fact by itself "did not constitute an actionable insufficiency or want of repair within the meaning of sec. 81.15, Stats., as a matter of law, in the absence of other conditions or surrounding circumstances that would warrant finding that there was such an insufficiency or want of repair; . . ." But it was also pointed out that (p. 35):
"`It will not do to rest the rule upon inches only. That is a factor in arriving at the result, but the other conditions and surrounding circumstances must also be considered.' Johnson v. Eau Claire, 149 Wis. 194, 198, 135 N.W. 481."
and that (p. 34):
"`Generally speaking, insufficiency or want of repair in a highway is a question of fact for the jury, under instructions from the court as to what is meant by these terms in the statute. . . . And the question is always one for a jury, unless conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy; . . .'"
In this case the depression of one and seven-eighths inches between the two slabs of concrete was by no means the only condition or circumstance to be considered. Both squares were cracked lengthwise in the center. The north half of one sloped down to the crack at a 20 per cent pitch and the west edge was tipped laterally at an angle of two and three-eighths inches per foot. William J. Chadwick, the city engineer, testified that the transverse pitch of the concrete portion of one of the blocks would not be in accordance with good engineering standards for reconstruction work, because "It is too difficult to walk on." The various angles of tipping or sloping in both squares, as shown in the photograph, combined with the depression of one and seven-eighths inches between them at the center, present an entirely different condition than that considered in the McCormick Case, and the question of its insufficiency was for the jury.
Defendant further contends that plaintiff failed to establish how and why she fell. Her story of what happened is entirely credible and the jury had a right to, and did, believe it. There is some evidence that snow had fallen the previous night and that the walk was wet or slushy, and while the jury was not asked whether or not that condition was the cause of plaintiff's fall, we must assume that it considered all the evidence in arriving at the conclusion that the proximate cause was the insufficiency and want of repair of the sidewalk itself.
By the Court. — Judgment reversed and cause remanded with instructions to enter judgment on the verdict.