34 Wis. 435 | Wis. | 1874
It is insisted by the counsel for the city, that the court should have granted the nonsuit and dismissed the complaint, because it appeared from the plaintiff’s own testimony that he was guilty of negligence, which directly contributed to produce the injury complained of. The facts upon which negligence on his part is predicated as a question of law, are the following :
The plaintiff testified, in substance, that at the time of the accident he was going to the railroad depot to take the cars to attend the Green Lake circuit on professional business; that he passed on Main Street to the south side of Division Street; that he went on that side of Division Street until he crossed the bridge over the east branch of Eond du Lac River, when he crossed to the north side of the street, and in going down the descent from the bridge to the sidewalk, he fell and dislocated and broke his arm. It was about half-past six in the evening,
Another important question discussed in the case is, whether the evidence introduced on the trial showed or tended to prove that the sidewalk where the plaintiff was injured was out of repair, or constructed in so defective and improper a manner as to render the city liable on account of its negligence. It is claimed that the facts in relation to the condition of the sidewalk clearly show that it was not defective or unsafe for persons using due care in traveling upon it. We are of the opinion however that there was enough evidence bearing upon the question of defect or insufficiency to carry the case to the jui’y.
It appears from the testimony that the bridge across Division Street was raised over two feet in the fall of 1870, and that when the bridge was raised this inclined walk on the north side of the street down to the sidewalk was constructed. The witness E. H. Jones testifies that his place of business was on the south side of Division Street, and that he was familiar with the structure of the walk and the approaches to the bridge on the west side of the river. He says that it was a very slippery place there during cold weather, and that in November, 1871, he spoke to the chairman of the ward, asking him if this sloping arrangement or sidewalk could not be done away with, and the walk made nearly level at that point, and told him that unless this were done there would be danger of persons falling in passing over it. The officer promised to have the walk 'raised before winter set in, but the walk in fact was not changed until the next spring. There were strips nailed across this inclined walk, and a railing put up on the north side to assist persons passing over it; but still it appears that when these strips became covered and packed with snow and ice the place was very slippery, so much so that it was difficult for travelers
On the trial the defendant offered to show that there were a great number of bridges in the city which were built higher than the street, and that nearly all the approaches to these bridges were raised. The evidence was objected to, and ex-
The judgment of the circuit court must be affirmed.
By the Court — Judgment affirmed.