Beaudin v. City of Oconto

Eschweiler, J. The owner of the building from which projected the bay window over the sidewalk, alleged in plaintiff’s complaint to be the cause of the unnatural accumulation of ice upon the sidewalk forming the ridge upon which she slipped and fell, was not made a party defendant under sec. 1340a, Stats. The judgment in plaintiff’s favor must be sustained, if at all, by virtue of the provisions of sec. 1339, creating a statutory primary right of action against a municipality for damages caused by defects in public highways. This statute has, however, the following express limitation upon any such right to recover, namely: “No action shall be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway; unless such accumulation shall have existed for three weeks.” The jury found, and the trial court sustained the finding, that the sidewalk had not been in a reasonably safe condition for public use for the three weeks before the injury. The evidence upon which such finding alone can be supported was that given by a witness living in the neighborhood who testified he had noticed for many preceding winters an icy condition under such bay window. On direct examination he testified that possibly two or three weeks before the injury he saw that ridge of ice on the sidewalk; that it would depend largely on what was the weather. On cross-examination with reference to such period before the injury he stated that it was somewheres in the neighborhood of three weeks — “one, two, or three weeks.” It is contended that this testimony supported by the weather report, a summary of which is set forth in the statement of facts, is sufficient to support the finding of the continuous existence of this ridge of ice for the requisite three weeks. .We are unable to find for ourselves, nor is it indicated in the argument, in what manner the weather report supplies the manifest lack of the requisite proof by the oral testimony [345] as to the existence of such accumulation of ice for the three weeks prior to the injury, assuming that such condition, if it existed, could be charged to the defendant city as creating a primary liability. We are constrained to hold that judgment should have been granted in favor of the defendant. By the Court. — Judgment reversed, with directions to dismiss the complaint.