Pittenger v. Town of Hamilton

Cassoday, J. In view of the issue presented by the pleadings, as mentioned in the foregoing statement, it is claimed that the trial court committed an error in charging the jury [358] that “ so far as the liability of the town is concerned, I do not see as there is much difference — or any difference, perhaps — whether the board was fast to the sidewalk or not. It was not in the line of the sidewalk, and a person going across the street in the way this young lady is represented to have gone would be, for anything that I can see, just as liable to get hurt on a nail in one position as in the other. So I do not think that it is very material which view of the question obtains.” The court had already told the jury that: “ No one claims, I believe, that the cause of this injury was a part of the sidewalk. It was outside of the sidewalk, and the only dispute in the evidence about this, I think, is whether the board which contained the nail which did the damage was fastened to the sidewalk or not; that the nail, by all accounts, was outside of the line of the sidewalk. And that circumstance is proper for you to consider in determining whether that sidewalk or highway was reasonably safe, in respect to its causing that accident. That involves the question whether any one passing along the sidewalk would be reasonably safe from any injury by this nail. That is involved in the question of whether that sidewalk, considered as a part of the street, was reasonably sufficient and safe.” In view of the undisputed evidence, we perceive no error in the charge. The chairman of the town, who saw the locus in quo just after the accident, testified to the effect that at the point in question the walk was constructed of two-inch planks laid upon three stringers; that the ends of the planks projected over the stringer, on the side to,wards the street, from two and one-half to three inches; that the dirt or ice of the street was about four inches below the under side of the planks, as they extended over the stringers ; that the board lay flat on the ground, and extended lengthwise down the sidewalk about four feet; that the south end of it extended out into the street ten inches or a [359] foot; that it might have gone up an inch under these planks that ran over or nearly to the edge of it, and lay bedded in the ground; that it lay flat on the ground, and looked as if it had lain there for some time; that it was bedded in there a quarter or half an inch; that it had a regular bed there; that it was not frozen in at the time, but was bedded there. It will be observed that Minnie was crossing the street at the time she stepped upon the nail and was injured, and by reason of which she soon after lost her life. Counsel seem to think that unless the board with the nail projecting upward was attached to, and constituted a part of, the sidewalk, there could be no recovery. But it is well settled that where the defect is so near the traveled portion of the walk or street as to endanger travel thereon the town is liable. Fitzgerald v. Berlin, 64 Wis. 203; Hay v. Weber, 79 Wis. 590. We find no error in the record. By the Court.- — -The judgment of the circuit court is affirmed.