Salzer v. City of Milwaukee

NewmaN, J. The defendant alleges for error: (1) The overruling of the demurrer ore tenus; (2) the overruling of the motion for a nonsuit; (3) the overruling of the motion-for a new trial; (4) errors in the charge to the jury; and (5) in refusing to submit, in the special verdict, questions, requested by the defendant. [473] 1. The point urged against the adequacy of the complaint is that it alleges merely an icy and unsafe condition of the-sidewalk at the time of the accident, caused by a sudden change of -weather. It is urged that the defendant cannot, be held responsible for that condition. It is true that,, for a defect of a sidewalk which is mere iciness or slipperiness, produced by natural causes, the city is not responsible; yet when such condition concurs with a previous defect, for which the city is responsible, the city is liable for damages.. Cook v. Milwaukee, 24 Wis. 270; Stilling v. Thorp, 54 Wis. 528; Hill v. Fond du Lac, 56 Wis. 242; Paulson v. Pelican, 79 Wis. 445; Chamberlain v. Oshkosh, 84 Wis. 289; Koch v. Ashland, 88 Wis. 603; West v. Eau Claire, 89 Wis. 31. Also, see Taylor v. Yonkers, 105 N. Y. 202; Tobey v. Hudson, 49 Hun, 318; Johnson v. Glens Falls, 16 N. Y. Supp. 585; Harrington v. Buffalo, 121 N. Y. 147; Wyman v. Philadelphia, 175 Pa. St. 117; Ayres v. Hammondsport, 130 N. Y. 665. The complaint alleges such previous defective condition by-reason of snow and ice which had been suffered to accumulate there, in an uneven, slippery, and dangerous condition*. It also alleges that such condition had continued for a longtime. It was not error to overrule the demurrer ore tenus. 2. The motion for a nonsuit was based upon the premise-that the plaintiff’s own evidence proved his contributory negligence, in that he attempted to pass over the dangerous-place, knowing of its condition. This is said to amount to-an assumption of the risk and contributory negligence, as-matter of law. But undoubtedly the weight of authority is-that one may, without imputation of negligence, attempt, in-the exercise of due care, to pass over a place of known danger. It is a question for the jury whether due care is-observed, and whether the attempt itself -is negligence. Several of our own cases are to that effect. Kelley v. Fond du Lac, 31 Wis. 179; Kenworthy v. Ironton, 41 Wis. 647; Richards v. Oshkosh, 81 Wis. 226; Cumisky v. Kenosha, 87 Wis. [474] 286. See, also, Beacb, Contrib. Neg. § 273, and the cases •cited in the notes. There was' no error in refusing the non-suit. 3. Under this general assignment of error are several specifications of specific error: (a) That the special verdict does not find whether a notice of the accident, under sec. 1339, R. S., was served on the defendant. The answer to this objection is that there was no issue on that point to be tried. The complaint alleged the service of such notice. The answer admitted it, but denied that the notice served was sufficient to charge the defendant. Whether it was sufficient for that purpose was a question of law, for the court. The verdict is not defective for omitting to find on that point. ■(b) It is also urged under this general assignment of error that some of the findings of the special verdict are contrary to the evidence. Ey their answer to the seventh question, the jury find that there was “ some other condition of the sidewalk” besides the sudden freezing and the footprints ■“ which proximately caused the injury.” This is said to be contrary to the evidence. Such “ other condition ” is not named. The special verdict is not, in all respects, perspicuous. It seems to find, in effect, that a proximate cause of the accident was the uneven and slippery condition of the sidewalk, but that that was not the only proximate cause. There was some other concurring cause, which is not named. This seems to raise the question whether the cause found is ■alone sufficient to establish the defendant’s liability. The mere iciness of the sidewalk is not alone sufficient to establish it. It is found that the defendant had no actual notice •of the condition of the sidewalk at the time of the accident. It is also found that it ought to have known of its condition. This is absurd if the condition at the time of the accident is the sole cause, for that condition arose during the previous night, and the accident happened in the early morning. So that, with actual knowledge, the city would have been help [475] less to change the situation before the time of the accident. But if there was a concurring cause of the accident for which the city was responsible, as some long-standing defective condition which contributed to produce the actual condition at the .time of the accident, the city may be liable. The defendant proposed for the special verdict questions intended to elicit findings upon this question. But the court refused to submit them. So, the verdict fails to find upon that point. The point was controverted upon the trial. There was evidence which tended to show that whatever accumulation of snow and ice had been at the place of the accident had been substantially removed by the previous thawing. Being a controverted question, it was necessarily for the jury. It seems clear that an affirmative finding of such previous defective condition is essential to establish the defendant’s responsibility for its condition at the time of the accident. The finding that there was some other cause, not specified, cannot be held substantially equivalent to such a finding. So, the verdict is defective in a substantial matter. It cannot sustain the judgment. The verdict should have been -set aside and a new trial granted. 4. It is not needful to review the charge. Many of the alleged errors relate to questions of law which have been treated in the opinion. Wherein the charge was erroneous, it is not likely to be repeated on another trial. 5. Some of the defendant’s proposed questions should have been submitted, in substance at least. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause remanded for a new trial.