85 Wis. 187 | Wis. | 1893
This action is brought to recover damages for a personal injury to the plaintiff, caused by the defective condition and want of repair of a sidewalk of said city. At the close of the testimony for the plaintiff the circuit court granted a nonsuit on the motion of the defendant. The grounds of the motion were that there was no negligence on the part of the city shown, and that there was contributory negligence on the part of the plaintiff shown by the evidence. Of course, either one or the other of these grounds, sustained by clear and satisfactory testimony, would be sufficient to justify the nonsuit. In an action for negligence a nonsuit is proper only when the inference of contributory negligence on the part of the plaintiff, or of the absence of negligence on the part of the defendant, is deducible from the undisputed facts and circumstances proved. Hoye v. C. & N. W. R. Co. 62 Wis. 666. From the facts established by the indisputable evidence we are satisfied that under this rule the defendant, in respect to this ice on the walk, was not guilty of any
Without detailing the testimony, the facts established by it appear to be as follows: On the 26th day of January, 1892, between 9 and 10 o’clock in the forenoon, the plaintiff, without any special business and not hurried, was walking along the walk on South Blair street of the city, near the place of business of Warnes & Swenson, until he came to a place where there was ice a few feet wide on the walk, which was an inch or two thick where travelers walked and some thicker next to the adjacent building, and gradually ran out about the middle of the walk', or perhaps nearer the outside of the walk. It -was nearly level, and was not piled up, except near the building. • On this ice he slipped and fell, and broke his left arm. The ice at that place was caused by the melting of ice and snow on the roofs' and in the gutters ■ of that building, which was one story in front and two in the rear, during the day, and spattering down on the walk; and at night it froze up and made this patch of ice. This was usual in the winter, and there were other similar places on the walks, and from a similar cause. There #as nothing in the construction of the building or in its condition upon which any culpable negligence of its owner or of the city could be predicated. The walk at that place had a slope lengthwise, according to the established grade of the street, and an inclination of a few inches towards the gutter, but only such as is common with all sidewalks properly constructed. From the description by the several witnesses of this ice it appears to have been formed by the melted snow and ice on the adjacent building, by the warmth of the day, spattered or sprinkled down on the walk next to the building, and towards night, and at night, by freezing as it fell, and making naturally thicker ice near the building, and, the water running off towards the gutter, the ice became thinner and
From this description anyone maybe reminded of many similar places on the walks in the winter. If it should be held that it was the duty of the city to remove the ice from all such places on the walks in the winter, it would be a duty of impossible performance, with all the manual labor and machinery within its command. The gutters and pipes of buildings are liable to freeze up in this latitude in the winter, and the melting snow and ice, caused by the heat of the Sun in the day time, will naturally and necessarily fall over the eaves and down on the walks, and run off into the gutters of the streets. At the freezing time of the evening it will be arrested in its flow, and congealed with the same descent or inclination of the walks,- — thicker where it falls, and growing thinner until it ceases to run, at this place about the middle of the walk. These conditions are produced by natural causes, or the operation of the laws of gravitation and temperature. Such places may be defects in the walks, but they are natural and common defects, for which the municipality is not responsible. They are unpreventable and irreparable. As said in Taylor v. Yonkers, 105 N. Y. 202, a late case in New York: “ It often happens that a fall of rain or the melting of adjoining snow is suddenly followed by a severe cold, which covers everything with a film or layer of ice, and makes the walks slippery and dangerous. This frozen surface is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting the result.” Our own cases are sufficient authority for holding that the presence of such ice on the walk is not a defect for which the city is liable. Grossenbach v. Milwaukee, 65 Wis. 31; Schroth v. Prescott, 63 Wis. 652; Cook v. Milwaukee, 27 Wis. 192. The cases cited by the
On the other ground for the nonsuit — of the contributory negligence of the plaintiff — very little need be said, as the evidence is very short and to the point. The plaintiff testified that at this time he was not employed, and was laying off and walking around. At this time he was on his way towards the depot, and was walking right along. He saw the walk ahead of him, and looked at it. He was looking at the sidewalk straight ahead. His attention was not diverted and he w.as not looking away. He could see that walk just as well as he could then see the floor (in the room where he was examined). He did not notice the ice on the walk. He resided in the same block where the ice was, and had passed the same place often before, and saw how the ice was formed by the water spattering down from the roofs, and had seen the ice there and in several other places on that walk. From his own testimony there cannot be the least question but that the plaintiff slipped and fell on this ice through his own want of ordinary care. He knew all about it, and howT it was formed, and passed the place nearly every day going to the depot to see the trains come in, and looked at the walk right ahead of him at this time, and it was daylight, so that he could see it. There was room on the walk where there was no ice for him to pass over if he chose to do so. He was grossly careless, or he would not have slipped down on this narrow patch of level ice. This conclusion is inevitable. He was well aware of all the danger there was in passing over this place,
By the Court.— The judgment of the circuit court is affirmed.