Fitzgerald v. City of Berlin, 51 Wis. 81

Fitzgerald v. City of Berlin

51 Wis. 81 | Wis. | 1881

Lyon, J.

It is very frequently essential to the convenient and proper use of hotels and other business houses, sometimes of dwellings, adjacent to streets in cities and villages, that they *84be constructed with stairways on the street sides, leading downwards to the basements and cellars, or upwards to the front entrances of such buildings. Structures of this character, which do not encroach upon the sidewalks, are lawful. The existence of such a structure, however, imposes upon the municipality in which it is situated the duty of providing-proper safeguards to prevent the happening of accidents, by reason of its proximity to the sidewalk, to persons traveling thereon with ordinary care. In the present case the stairway where plaintiff was injured was constructed parallel to and abutting what the defendant claims to be the sidewalk. If it did not encroach upon the sidewalk, we think the defendant city performed its duty by maintaining a sufficient barrier between the sidewalk and the stairway. A barrier, or gate, placed at the entrance to the stairway, would in many, perhaps in most, cases be very inconvenient, and would, or might, seriously interfere with the lawful use of his premises by the owner. On the facts of this case we think it would be unreasonable to require the municipality to maintain such a safeguard at the entrance to the stairway in question, unless it was within the limits of the sidewalk. The city, therefore, was guilty of no neglect of duty unless the stairway was within the limits of the sidewalk ordinarily used and traveled by the public; and the jury should have been so instructed. They were not so instructed, but the question whether the city was guilty of negligence was left to them, notwithstanding they should find that the stairway was not within the limits of the sidewalk. This was error. We think the instruction proposed on behalf of the city, quoted in the foregoing statement of the case, is substantially correct, and should have been given.

Several other errors are alleged, but it is not deemed necessary to consider them.

By the Cowt.— Judgment reversed, and cause remanded for a new trial.