Berg v. City of Milwaukee

Cassoday, J. It appears from the record, in effect, that Wells street runs east and west in the defendant city; that Third street crosses Wells street at right angles; that at the time of the accident, January 5, 1889, the sidewalk on the west side of Third street, at its intersection with the sidewalk on the south side of Wells street, was somewhere from twenty-one inches to three feet higher than said sidewalk on Wells street; that in passing from said Third street sidewalk down onto said Wells street sidewalk there was one step about halfway down; that the plaintiff at that time was nearly sixty-six years of age, and lived with his sori, a baker, on the west side of Third street, and some distance north of Wells street; that about half past 5 o’clock on the morning in question he started fróm his son’s bakery carrying a basket of bread weighing about twenty-five pounds on his right shoulder, and went south on the sidewalk on the west side of Third street to and across Wells street; that, in attempting to.go down on to the sidewalk on the south side of Wells street, he imagined he was carefully stepping onto the step mentioned, but missed it and fell forward, and was injured; that at the time the street light had been extinguished, and it was dark. We are constrained to hold that the evidence was sufficient to justify the court in submitting to the jury the 602 question whether the locus in quo, or the intersection of the sidewalks in question, was insufficient or out of repair at the time mentioned, and, if so,.whether such defect was the cause of the plaintiff’s injury. Upon that point the court, among other things, charged the jury, in effect, that ordinarily “ the question of a defective or safe highway is a question of fact for the jury, and this is pre-eminently such a case.” The same rule is equally applicable to the question of contributory negligence, in a case like this. The court, among other things, charged the jury that “ there is testimony tending to show that, when he reached a point near the steps he was about to reach on this declivity, he himself calculated his distance from the upper step, or from the first step, and thought he had another step to take upon the sidewalk, and was mistaken, as to that, and so fell down the steps; and, if that be the fact, he is not thereby chargeable with contributory negligence.” This was taking from the jury what ought to have been submitted to the jury. In the same connection the court charged the jury, in effect, that if the plaintiff was at the time “ using his best judgment,”.wad. it turned out that in doing so he had fallen into an error, that was “ not to be imputed to him as negligence.” This made the plaintiff’s best judgment the standard off care which he was required at the time to exercise, instead of the well-established standard fixed by the law. In the same connection the court charged the jury, in effect, that if they believed from the evidence that the plaintiff fell by reason of “some grievous and harmful error” of judgment on his part; “ that being in the exercise, at least, of ordinary care and prudence, and solely by reason of a miscalculation on his part as to the distance between him and the steps in question, you will not, in that case, find him guilty of contributory negligence. You will not find that fact to constitute a want of ordinary care.” This was 603 a misapplication of the well-established rule “ that where there are two or more different lines of action, any one of which may be taken, and a person with 'ordinary skill, in the presence of imminent danger, is compelled immediately to choose one of them, and does so in good faith, the mere fact that it is afterwards ascertained by. the result that his choice was not the best means of escape cannot be imputed to him as negligence.” Schultz v. C. & N. W. R. Co. 44 Wis. 638; Gumz v. C., St. P. & M. R. Co. 52 Wis. 679; Stackman v. C. & N. W. R. Co. 80 Wis. 433. The rule certainly has no application where a person voluntarily and negligently brings injury upon himself, or puts himself in a place of danger. Liermann v. C., M. & St. P. R. Co. 82 Wis. 286; Baltzer v. C., M. & N. R. Co. ante. p. 459. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.