Cook v. City of Milwaukee

24 Wis. 270

• Court: Wisconsin Supreme Court
• Decided: June 15, 1869
• Status: Published

Opinion

T)ixow, C. J.

The complaint does not charge that the snow which had fallen and was suffered to remain and be trodden down by the foot passengers, constituted an obstruction, or was in a rough and uneven condition, so as to be unsafe or dangerous to persons walking on the side and cross-walk, and using due care. It does not charge that the walk was not properly and well constructed, or that there was any defect or insufficiency in the manner of placing the stone across or over the gutter. The only defect complained of in this particular is, that the walk over the stone was slippery because of the smooth surface of the snow and ice which had accumulated upon it. That such a condition of the walk, arising from such a cause, is not an insufficiency or want of repair which will make the city liable in damages under a statute like ours, was decided by the supreme court of Massachusetts in Stanton v. Springfield (12 Allen, 566), and in Hutchins v. Boston and Johnson v. Lowell, immediately following in the same report; and also in Nason v. City of Boston, 14 id. 508. Upon this point we are content to refer to those cases, being abundantly satisfied, for the reasons given in the opinion in the first case, that they hold the correct rule of law in relation to it.

If, however, ice or snow is suffered to remain upon a sidewalk hi such an uneven and rounded form that a person cannot walk over it, using due care, without danger of falling down, that, it seems, does constitute a defect for which the city or town will be liable. Luther v. Worcester, 97 Mass. 268; Hutchins v. Boston, id. 272. See likewise Hull v. Lowell, 10 Cush. 260; Shea v. Lowell, 8 Allen, 136; Payne, v. Lowell, 10 id. 147; Providence v. Clapp, 17 How. 164.

As to the other charge in the complaint, that the gutter was permitted to become and remain so filled and obstructed by divers'substances that it could not, and did not, carry off the water which was pumped from the river upon the street above it, by the wrongful use of the steam fire engines, but that the same was thereby forced from the gutter, and caused to flow across the street, and on to the snow which was beaten and trod- ■ den down -apon the stone, where, becoming congealed and frozen, it formed a solid mass of ice over the surface of the stone, we are of opinion that enough is not stated to show a canse of action upon this ground. It is not averred when the gutter became obstructed, or how long it had remained so. The nature of the obstruction is not set forth. It does not appear that the condition of the gutter was such from that cause, that it would not have discharged and carried off all the water flowing or accumulating there from natural causes. If it was in a condition to have done this, then, we think, the city ought not to be held responsible for the consequences of such an extraordinary occurrence as the wrongful pumping upon the street of a large quantity of water, or the wrongful accumulation of water there by other artificial means ; unless it should appear that it was guilty of some subsequent negligence or default in not repairing the sidewalk which had thus become impassable or dangerous for travelers. To hold that the city, in order to obviate the liability imposed by the statute, is bound at all times to keep the gutters in such condition as that they will carry off water thus unlawfully thro.wn upon the streets, would, in our judgment, be requiring a degree of care and watchfulness altogether unreasonable, and not contemplated by the legislature. If liable at all by reason of such unusual and unlawful acts, it can only be when the gutters are shown to have become and remained wholly obstructed, or in such condition that the dangerous consequences to be apprehended from the overflowing of water were apparent.

By the Qourt. — Order reversed, and cause remanded for further proceedings according to law.