166 Wis. 168 | Wis. | 1917
Defendant claims that tbe judgment should be reversed for two reasons: (1) that the defect which existed in the sidewalk was not actionable, and"(2) that the plaintiff was guilty of contributory negligence.
The sidewalk in question was built of concrete and was constructed in the ordinary way in squares. At the point where the corners of four blocks came together there was an inequality in the sidewalk, caused, as appears from the cast offered and received in evidence, by a slight depression in one block and an elevation in the adjacent block immediately to the north of it. From the bottom of the depression to the top of the elevation was about one and one-quarter inches. The elevation was from three quarters of an inch to an inch above the general level of the sidewalk. Did the court err in permitting the jury to say whether or not the walk was defective ?
This case is clearly ruled in favor of the appellant by Kleiner v. Madison, 104 Wis. 339, 80 N. W. 453. The decision in Kleiner v. Madison is not modified or overruled by Johnson v. Eau Claire, 149 Wis. 194, 135 N. W. 481. It is not necessary to repeat here what was said in Kleiner v. Madison. The doctrine announced in that case finds support in a large number of cases from other jurisdictions, cited in 20 L. R. A. n. s. 640, and 43 L. R. A. n. s. 1158.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiff’s complaint upon the merits.