110 Wis. 478 | Wis. | 1901
This is an action to recover damages for personal injuries sustained by the plaintiff upon stepping from a street car on which she was riding westerly on Grand avenue after the car had stopped immediately west of the intersection of the west line of West Water street and Grand avenue, by reason of an alleged defect in the asphalt pavement. Issue being joined and trial had, the jury returned a special verdict to the effect: (1) That the plaintiff was injured July 13, 1898, by falling near the northwest corner of the intersection of Grand avenue and West Water street, in the city of Milwaukee; (2) that there was at the time when and the place where the plaintiff was injured such a defect in the asphalt pavement as rendered it unsafe or dangerous for persons alighting from street cars when in
Thereupon, and in pursuance of an order of the court, judgment was entered in favor of the plaintiff for the amount mentioned, with costs. From that judgment the defendant brings this appeal.
It is conceded that when the car stopped at the time and place mentioned the plaintiff, who was forty-three years of age and a widow, left her seat, which was crosswise the open car and about the middle thereof, and took hold of the post in front of her on the north side of the car with her left hand, and stepped down upon the step eight inches wide, which extended the whole length of the car, and then, after looking both ways to see if any teams were coming, she stepped down into a depression in the pavement, and her foot bent under her, and she fell, and seriously and permanently injured her. There were two street-railway tracks on Grand avenue, and the car in question was on the north track. It stopped at the usual and customary place for the stopping of all cars proceeding in a westerly direction. The intersection of those two streets was one of the princi
It appears from the testimony of a witness on the part of the defendant, and is undisputed, that he repaired the water pipe in front of Bloedel’s jewelry store on Grand avenue May 28, 1898; that he cut out the asphalt in a square; that
Thus it appears that seven witnesses substantially agree as to the depth of the depression, two of them fixing it by actual measurement, and five of them by estimate; four of them being witnesses of the plaintiff. Two other witnesses of the plaintiff substantially agree with such measurement, except that in their estimates they put it about an inch deeper than such measurement. But the witness Meyers, in behalf of the plaintiff, who testified to the effect that he did business at the time of the accident on Grand avenue, three stores west of West Water street; that he heard of the accident three or four days after it occurred; that he did not examine the place of the accident any more than stopping there, waiting for a street car on his way home; that he noticed it, ever since the street was torn up, several times a day; that he noticed that rut up to the time it was filled in and repaired, the spring before the accident, in the same place, as a part of a prior excavation; that the rut was about four or five feet long, and about three feet wide, and probably three or four inches sloped down, worn off from vehicles passing over it, a little more in one place than in another; the deepest part was probably five or six inches; that he made no measurements of that depression; that on the day of the accident the rut was six or seven feet north of the north railroad track. The rut thus mentioned is obviously not the one the plaintiff stepped into, for she testi-
By the Oourt.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.