Whitney v. City of Milwaukee

Taylor, J. We are of the opinion that the demurrer was properly overruled. Upon the facts stated in the complaint, we cannot say, as a question of law, that the cross-walk at the place where the accident happened was not an insufficient and dangerous cross-walk. The allegations of the complaint show that the cross-walk was on one of the principal streets of the city; that at the point where it left the sidewalk it was three and one half feet above the street; that-it descended to the street at a distance of only eight feet from the sidewalk, making, so far as we can determine from the complaint, a descent of three and one half feet in the distance of eight feet; that the cross-walk was but five feet and four inches wide, while the sidewalk from which it started is fourteen feet and nine inches wide; that the cross-walk was not placed in a line with the Grand avenue sidewalk, but was out of range with it, and had no rail or other protection to prevent the traveler from falling therefrom, or to guide him along the same. We think these allegations present a state of facts which will not justify a court in determining as a question of law that .the cross-walk was in all respects a sufficient walk. It is clearly a question of fact for the determination of a jury. [643] It presents a much, stronger case of a defective and insufficient crossing than was presented by the evidence in the case of Perkins v. Fond du Lac, 34 Wis., 435. In that case, the walk leading from the bridge to the sidewalk descended but two and one half feet in twenty, and had a hand-rail on one side. Mr. Perkins was injured by falling on this walk in the winter, when it was covered with snow and was very slippery. The present chief justice, in his opinion in that case, says: “It is alleged in the complaint, and the testimony strongly supports the averment, that the walk at this point was constructed in a faulty and unsafe manner. And if it was unskilfully built, so as unnecessarily to increase the danger and peril of persons passing over it while it was covered with snow and ice, this would certainly constitute a defect for which the city would be liable. That it was practicable to construct the walk differently and more on a level with the bridge, so as to avoid the danger of passing up and down the descent, was a fact fairly inferable from the evidence. . . . From these facts the jury might well have found that the walk was improperly built, and that as a consequence it was not safe and convenient for ordinary travel. If so, it was the fault of the city, and it must respond in damages to one sustaining injury through its negligence.” This language is equally applicable to the case at bar. A jury might say that a cross-walk but five and one half feet wide, descending from a sidewalk fourteen feet and nine inches wide, on an incline of three and one half feet in eight feet, not in line with the sidewalk, and without any guard or railiug, upon one of the great thoroughfares of a large city, “ was constructed in a faulty and unsafe manner,” and “that it was practicable to construct it so as to avoid the danger of passing up and down the descent.” The learned city attorney says: “ The fault or danger, if there was any, existed, accQrding to the complaint, in the flan of the sidewalk and crossing, and not in the ministerial [644] act of building them;” and then invokes the doctrine laid down in some of the cases, that a municipality cannot be held responsible because a sidewalk is built upon a defective or dangerous plan, adopted by the proper municipal authorities. Urquhart v. City of Ogdensburgh, 91 N. Y., 67; 2 Dillon on Mun. Córp., §§ 949-1046. It is a sufficient answer to this suggestion that it does not appear from the complaint that the cross-walk in question was in fact built in accordance with any plan so adopted. We are not, therefore, called upon in this case to determine the question of the liability of the city if it should adopta plan of constructing its streets, sidewalks, and cross-walks which was so faulty as to seriously endanger the lives and limbs of its citizens passing over the same. By the Cowrt.— The order of the county court is affirmed, and the cause remanded for further proceedings.