Morrison v. City of Madison

96 Wis. 452 | Wis. | 1897

MIaRshall, J.

The single question presented in this case is, "Was the cross-walk, where the deceased was injured, defective as a matter of law? The facts in regard to its construction and condition are all undisputed; yet if there was any room for honest differences of opinion among reasonable men of unbiased minds in respect to the inferences that should be drawn therefrom regarding the fact in issue, then it -was for the jury, and not the court, to draw the correct inference. It is only when the facts are undisputed, and • the reasonable inferences therefrom in regard to the ultimate fact in issue are all one way, that what is the proper inference is a question of law for the court to answer. Sabotta v. St. Paul F. & M. Ins. Co. 54 Wis. 687; Dahl v. Milwaukee City R. Co. 62 Wis. 652; Hill v. Fond du Lac, 56 Wis. 242; Orttel v. C., M. & St. P. R. Co. 89 Wis. 127.

In the light of the foregoing well-established principle, and the numerous adjudications of this court applying it to facts similar to those here presented, and unfavorably to appellant’s contention, we must hold and decide that the court properly submitted the question of the sufficiency of the cross-walk to the jury, and that the determination in that regard in defendant’s favor is a verity in the case. Keeping in mind, for the purposes df comparison, that the cross-walk was on a grade of about one and three-quarters inches to the foot; that, as in all the oases to- which we will refer, there were no cleats on the walk to guard against danger of travelers slipping thereon; that such grade and absence of cleats were the only defects complained of which, on the evidence, could have had anything to do with the injury to the deceased, the cases cited by respondent’s counsel from the records of this court are clearly conclusive in its favor. In Cook v. Milwaukee, 27 Wis. 191, a flagstone, lying across a gutter and forming a part of the cross-walk, was on a slant of one inch to the foot, and the sidewalk in connection with .the flagstone, for a .distance of two feet, was on a slant of three inches to the foot. In Hill v. Fond du Lac, 56 Wis. 242, there was a descent in the walk of three inches .to the foot for a space of two feet. In Schroth v. Prescott, 63 Wis. 652, the slant of the walk was about the same as in this case. In Whitney v. Milwaukee, 57 Wis. 639, the slant of the walk was still greater than in the preceding case. In McMaugh v. Milwaukee, 32 Wis. 200, the walk was two and a half feet above the surface of the gutter, and descended at the rate of about two inches to the foot. Plaintiff, in attempting to walk on it when it was covered with ice, slipped and was injured. In Perkins v. Fond du Lac, 34 Wis. 435, the walk was constructed of plank, and on a grade of about one and three-quarters inches to the foot. Plaintiff was injured by slipping while walking thereon when the walk was covered with ice. In Grossenbach v. Milwaukee, 65 Wis. 31, the cross-walk where plaintiff was injured was on a grade of from one to one and a half inches to the foot. In all of these cases this court held that the sufficiency of the walk was a question for the jury. We cannot hold otherwise in • this case without going contrary to the established law on the subject.

By the Court.— The judgment of the circuit court is af-. firmed.