Mundell v. City of Milwaukee

The following opinion was filed November 9, 1926: EschweileR, J. A consideration of the record in this case compels the conclusion that the plaintiff fell because of the slippery condition of the sidewalk rather than because of any depression in the sidewalk. That the sidewalk was slippery over its entire surface is undisputed; it appears from plaintiff’s own frank admission and is also shown from the testimony of the doctor who assisted in carrying the plaintiff to her own house around the corner, and in so carrying her on a chair it was deemed necessary to walk along the side of the sidewalk rather than on its surface because of the slippery condition. The notice of injury, served promptly after the accident, specifically asserted as a ground of liability a dangerous condition due to the accumulation of snow and ice for a long period of time. A cause of action, however, could not be maintained under such claim because such condition had not existed for the three weeks fixed by the statute as the necessary period of its existence before liability can be asserted agáinst a city. Sec. 81.15, Stats.; Beaudin v. Oconto, 183 Wis. 341, 344, 197 N. W. 792. While a depth of five inches or more down 'to the concrete bed of the sidewalk could be reached by clearing out the accumulation of dirt in the crack between the cement blocks, yet it is undisputed that it was not so cleared out at the time plaintiff fell, and even if it were wider than one and three-quarters inches owing to any possible unheaval by frost, yet it is undisputed that it was then covered by snow and ice. The city being only liable for what the law recognizes as an actionable defect in construction or maintenance of its sidewalk, we think that there was here shown no such a [512] condition or want of repair of the sidewalk as to present a jury question, and the trial court should have held as a matter of law that the defendant city had not violated its statutory duty. Ross v. Shawano, 179 Wis. 595, 596, 191 N. W. 970; Hollan v. Milwaukee, 174 Wis. 392, 395, 182 N. W. 978; Padden v. Milwaukee, 173 Wis. 284, 286, 181 N. W. 209; Van der Blomen v. Milwaukee, 166 Wis. 168, 169, 164 N. W. 844. By the Cotirt. — Judgment reversed, with directions to dismiss the • complaint. A motion for a rehearing was denied, with $25 costs, on January 11, 1927. ' ‘