Cumisky v. City of Kenosha

87 Wis. 286 | Wis. | 1894

Orton, C. J.

The facts in this case are very few. The defect in the sidewalk which was the cause of the plaintiffs injury was a high ridge of ice on the walk at the intersection of Grand avenue and Main street in the city of Keno-sha, of considerable height, of rounded form, and that covered the entire walk, and had been there for a long time. The plaintiff had occasion to pass over this obstruction on the 26th day of January, 1893, about 5 o’clock P. M., and, not thinking of the ice, she stepped upon it, and slipped and fell on her side, and was injured very seriously. The jury rendered a verdict for the plaintiff for $4,000 damages.

The plaintiff testified that she had passed over that ridge of ice before, and the last time before the accident, that same afternoon, about an hour before, and noticed it as a very bad place, and that it was six or eight inches high. The plaintiff was fifty-three years old. She was returning towards her home from the other side of the city, and just as she came to the ice ridge there were a great many workmen from the shops, who had just quit work at the ringing of the 5 o’clock bell, and she was timid and nervous about meeting so many persons, and she hurried so as not to meet them. As she came to the corner, she looked up to see the men coming. Not thinking of anything else, she slipped and fell. She was not thinking of the ice, and was looking at the men. The plaintiff’s attention was evidently, for the moment, diverted from the icy obstruction on the walk.

In connection with this evidence, the court very fairly submitted to the jury the question of her contributory negligence. It is contended by the learned counsel of the appellant that, notwithstanding this evidence of the plaintiff’s diversion from all thought of the obstruction or condition of the walk, she was guilty of contributory negligence and ought not to have recovered. This question was peculiarly for the jury, and they seem to have considered the circumstances sufficient to excuse the plaintiff for her want of recollection of the defect at the time, and her want of attention to it. Such facts and circumstances have often been held by this court to destrojr the effect of the plaintiff’s previous knowledge of the defect as the ground of contributory negligence, and repel the presumption of negligence from the plaintiff’s previous notice and knowledge of the obstruction, and that the jury might properly so consider them. Kavanaugh v. Janesville, 24 Wis. 618; Wheeler v. Westport, 30 Wis. 392; Kelley v. Fond du Lac, 31 Wis. 179; Barstow v. Berlin, 34 Wis. 357; Spearbracker v. Larrabee, 64 Wis. 573; Cantwell v. Appleton, 71 Wis. 463.

The insufficiency and want of repair of the street at this place was not contested, or the liability of the city to the plaintiff in the action, if the jury could properly find the plaintiff free from contributory negligence.

By the Court.— The judgment of the circuit court is affirmed.