Butcher v. City of Racine

ViNjE, C. J. The plaintiff contends that the trial court erred in not changing the jury’s answer to the third and seventh questions of the special verdict relating fo proximate cause; that it erred in changing the jury’s answer to the fourth question of the special verdict finding plaintiff guilty of contributory negligence. It is also claimed that plaintiff’s [545] negligence is not a bar to recovery in this case, relying upon the rule announced in Reiter v. Grober, 173 Wis. 493, 181 N. W. 739. Other errors are also assigned, but owing to the view taken of the case by this court it does not become necessarjr to discuss any of the alleged errors. The jury’s answers to the second and sixth questions are the only ones plaintiff can rely upon to sustain a judgment in his favor. These answers were, as a matter 'of law, not warranted by the evidence. The evidence shows that the barrier placed across the road near the entrance to the bridge could be plainly seen at the intersection of West Sixth street and Kinzie avenue even on the morning of the accident, which was somewhat misty. It is true the plaintiff testifies that he did not see it till he had traveled one third or one half the distance. But then he plainly saw it, and he had from 200 to 156 feet to travel before he reached the bridge, and he was going only ten miles an hour. The conditions that obtained gave him ample time to turn safely onto Race street,-the turn being only at an angle of 134 degrees and the street being level and the width of an ordinary street. There is no duty devolving upon those in charge of highways to post notices of conditions of the road some distance therefrom when the barrier itself gives ample and timely warning. Raymond v. Sauk County, 167 Wis. 125, 129, 166 N. W. 29. Here the barrier was properly placed before the entrance to the bridge to keep travelers from going across and encountering a hill beyond that was dangerous owing to the icy condition of the streets. But Race street could be safely traveled, and there was another street leading to the right where Race street joined Kinzie avenue, and that street was safe for travel, though the turn was more abrupt than onto Race street. So Kinzie avenue could not be properly closed further south if Race and the other street were to be permitted to be used. And there was no reason why they should not be used. When a barrier is [546] plainly visible over 300 feet away, and at a point where vehicles must turn a right angle' to come upon the street leading to it, it is in law a sufficient warning to travelers. Perhaps the reason why the jury answered questions 2 and 6 “Yes” was owing to a misdirection by the court in its instruction under question 2. The court said: “It appears that at the time in question the streets were generally very icy by reason of rain falling in the month of January, on the day of and the day before the accident, causing a glassy covering on the streets. ... It was not reasonably preventable and had existed for too short a time to enable the city to counteract it. But the city was chargeable with notice that such a condition may naturally arise during the winter season, and it should so construct and maintain its streets as to make them reasonably safe for public travel under such a condition.” The instruction to the effect that the city “should so construct and maintain its streets as to make them reasonably safe for public travel under such a condition” was clearly erroneous. No such duty devolves upon those in charge of highways and streets, because it is impossible to discharge under climatic conditions that exist in Wisconsin. Streets and highways cannot be so constructed as to be reasonably safe for travel under icy conditions. The statute provides for a reasonable time for counteracting icy conditions before liability attaches because thereof. The jury were told the sixth question was very similar to the second but not the same. But whether or not this error in the instruction caused the affirmative answers, it is clear that there was no negligence on the part of the defendant in the construction or maintenance of its streets, and therefore no recovery can be had. By the Court. — Judgment affirmed.