Maeshall, J.
Appellant contends that the trial court should have directed a verdict for defendant because of an entire failure of proof to sustain the allegations of the complaint, as regards failure of duty on defendant’s part respecting the safety of the walk and that the injury complained of was occasioned thereby. The complaint states a case well within the authorities as to actionable failure of duty respecting sidewalks, by allowing an accumulation of snow and ice thereon in such form as to constitute an obstruction to public travel independent of a mere slippery or rough condition caused by ice and snow. It states that for a long time prior to the accident there was an accumulation of snow and ice from three to ten inches deep extending clear across the walk; that it was rough, uneven, and in high ridges, and that such condition had existed for several weeks; but we look into the evidence in vain to find testimony to sustain such allegations. The most the evidence shows is that a few days before the injury there was a coating of about two inches in depth of snow, packed hard evenly over the walk by travel; that the walk had been in that condition for some time; that the weather turned warm, causing [374] the snow to become soft, wet, and sloppy, and then suddenly turned cold, causing ice to form with such footprints therein as would naturally be made by travel under such conditions. The bed of ice and snow three to ten inches deep, mentioned in the complaint, does not appear to have been observed by witnesses, nor the high ridges spoken o.f, nor the long-continued defective condition. True, the evidence shows that the walk had not been entirely free from snow since soon after the commencement of the winter season, but it was free except as stated. A small amount accumulated from frequent falls of snow so that, in its tramped condition, it was about two inches deep. That did not in any way interfere with public travel, or constitute any obstruction to such travel or defect in the walk. It was such an accumulation of snow as is usually found on walks in the resident portions of cities and villages in the winter season in this climate.
If the walk was defective at all at the time of the injury, it was wholly caused by the sudden freezing of the soft, slushy snow, spread evenly over it except as it was indented by footprints therein. Reasonable care did not require the, walk to be scraped clean, down to the planking, or that mere footprints made in the soft snow and frozen in that condition should be removed. They did not cause any obstruction to or render travel on the walk dangerous, tested by the standard of reasonable safety under the circumstances. The furthest the courts have gone on this question is to hold that snow and ice allowed to accumulate on a walk in an uneven and ridgy condition so as to constitute an obstruction to public travel, renders it defective, and action-ably so. Such was Koch v. Ashland, 88 Wis. 603, where snow had been permitted to accumulate upon the sidewalk until travel over it had formed a ridge twelve or fourteen inches high, which was rough and slippery. Also West v. Eau Claire, 89 Wis. 31, where there was a high ridge of ice formed on the walk by the course of travel, combined with [375] a defect in tbe walk itself by reason, of there being a bole therein. In Perkins v. Fond du Lac, 34 Wis. 435, it ivas held that hard snow and ice spread evenly over the surface of a walk does not constitute a defect; and to the same effect is Grossenbach v. Milwaukee, 65 Wis. 31; Chamberlain v. Oshkosh, 84 Wis. 289, and many other cases that might be cited, all going upon, the ground that such a condition is so common and natural everywhere in this climate in the winter season, and the municipal authorities so powerless to prevent it, or, with any reasonable certainty, to remove it at all without great expense, that it would be exceedingly oppressive and unreasonable’ to require it. The test of public duty is to be made by what is reasonable under all the circumstances. So it has been held that mere slipperiness, caused by the formation of ice evenly on a walk, or a coating of snow and ice, may exist without constituting any defect in the walk inconsistent with full performance of public duty, and, necessarily, the same must be true as to what would necessarily and unavoidably follow from the existence of such a condition, that is, that the thin coating of snow would become soft in warm weather, then suddenly freeze, leaving a roughened surface caused by footprints. If some previous defect combine with the icy condition, then the situation is different, as in Beaton v. Milwaukee, 97 Wis. 416; or if by reason of use the walk becomes worn into a dangerously uneven condition, as in Paulson v. Pelican, 79 Wis. 445. In Harrington v. Buffalo, 121 N. Y. 147, we have a case quite like this. Snow accumulated evenly over the walk to the depth of several inches, then became soft, wet, and sloppy, then suddenly froze hard, leaving the surface roughened by numerous footprints. In such situation the court said, in substance, that the walk presented no unusual appearance for cities in this variable and severe climate, and caused no more of an obstacle to reasonably safe passage of pedestrians than frequently exists in cities [376] and villages during the cold season; and we may add, tban may reasonably be expected by any person of average intelligence. A municipality could no more be expected to guard against the mere rough condition of a walk, caused by the sudden freezing of a thin coating of soft and sloppy snow thereon, than against the slippery condition caused by a smooth surface of ice on the walk.
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Maeshall, J.
Appellant contends that the trial court should have directed a verdict for defendant because of an entire failure of proof to sustain the allegations of the complaint, as regards failure of duty on defendant’s part respecting the safety of the walk and that the injury complained of was occasioned thereby. The complaint states a case well within the authorities as to actionable failure of duty respecting sidewalks, by allowing an accumulation of snow and ice thereon in such form as to constitute an obstruction to public travel independent of a mere slippery or rough condition caused by ice and snow. It states that for a long time prior to the accident there was an accumulation of snow and ice from three to ten inches deep extending clear across the walk; that it was rough, uneven, and in high ridges, and that such condition had existed for several weeks; but we look into the evidence in vain to find testimony to sustain such allegations. The most the evidence shows is that a few days before the injury there was a coating of about two inches in depth of snow, packed hard evenly over the walk by travel; that the walk had been in that condition for some time; that the weather turned warm, causing [374] the snow to become soft, wet, and sloppy, and then suddenly turned cold, causing ice to form with such footprints therein as would naturally be made by travel under such conditions. The bed of ice and snow three to ten inches deep, mentioned in the complaint, does not appear to have been observed by witnesses, nor the high ridges spoken o.f, nor the long-continued defective condition. True, the evidence shows that the walk had not been entirely free from snow since soon after the commencement of the winter season, but it was free except as stated. A small amount accumulated from frequent falls of snow so that, in its tramped condition, it was about two inches deep. That did not in any way interfere with public travel, or constitute any obstruction to such travel or defect in the walk. It was such an accumulation of snow as is usually found on walks in the resident portions of cities and villages in the winter season in this climate.
If the walk was defective at all at the time of the injury, it was wholly caused by the sudden freezing of the soft, slushy snow, spread evenly over it except as it was indented by footprints therein. Reasonable care did not require the, walk to be scraped clean, down to the planking, or that mere footprints made in the soft snow and frozen in that condition should be removed. They did not cause any obstruction to or render travel on the walk dangerous, tested by the standard of reasonable safety under the circumstances. The furthest the courts have gone on this question is to hold that snow and ice allowed to accumulate on a walk in an uneven and ridgy condition so as to constitute an obstruction to public travel, renders it defective, and action-ably so. Such was Koch v. Ashland, 88 Wis. 603, where snow had been permitted to accumulate upon the sidewalk until travel over it had formed a ridge twelve or fourteen inches high, which was rough and slippery. Also West v. Eau Claire, 89 Wis. 31, where there was a high ridge of ice formed on the walk by the course of travel, combined with [375] a defect in tbe walk itself by reason, of there being a bole therein. In Perkins v. Fond du Lac, 34 Wis. 435, it ivas held that hard snow and ice spread evenly over the surface of a walk does not constitute a defect; and to the same effect is Grossenbach v. Milwaukee, 65 Wis. 31; Chamberlain v. Oshkosh, 84 Wis. 289, and many other cases that might be cited, all going upon, the ground that such a condition is so common and natural everywhere in this climate in the winter season, and the municipal authorities so powerless to prevent it, or, with any reasonable certainty, to remove it at all without great expense, that it would be exceedingly oppressive and unreasonable’ to require it. The test of public duty is to be made by what is reasonable under all the circumstances. So it has been held that mere slipperiness, caused by the formation of ice evenly on a walk, or a coating of snow and ice, may exist without constituting any defect in the walk inconsistent with full performance of public duty, and, necessarily, the same must be true as to what would necessarily and unavoidably follow from the existence of such a condition, that is, that the thin coating of snow would become soft in warm weather, then suddenly freeze, leaving a roughened surface caused by footprints. If some previous defect combine with the icy condition, then the situation is different, as in Beaton v. Milwaukee, 97 Wis. 416; or if by reason of use the walk becomes worn into a dangerously uneven condition, as in Paulson v. Pelican, 79 Wis. 445. In Harrington v. Buffalo, 121 N. Y. 147, we have a case quite like this. Snow accumulated evenly over the walk to the depth of several inches, then became soft, wet, and sloppy, then suddenly froze hard, leaving the surface roughened by numerous footprints. In such situation the court said, in substance, that the walk presented no unusual appearance for cities in this variable and severe climate, and caused no more of an obstacle to reasonably safe passage of pedestrians than frequently exists in cities [376] and villages during the cold season; and we may add, tban may reasonably be expected by any person of average intelligence. A municipality could no more be expected to guard against the mere rough condition of a walk, caused by the sudden freezing of a thin coating of soft and sloppy snow thereon, than against the slippery condition caused by a smooth surface of ice on the walk.
On the subject of how the accident occurred the evidence is entirely silent. Plaintiff says she must have struck her heel against one of the lumps of ice, and slipped and fell backward. That of course was not only an unreasonable conclusion from the situation, but was not evidence in the case to properly be considered by the jury. The effect of plaintiff’s evidence is simply that while she was passing along the walk she suddenly fell backward and received the injury of which she complained. On that, and the evidence as to-the rough condition of the walk, it was left to the jury to say whether plaintiff merely slipped upon the icy surface of the walk because of its general slippery condition, or was caused to fall by her feet coming in contact with an obstruction in the walk which rendered it defective and unsuitable-for public travel. Erom the fact that the fall was backward,, and there was nothing to indicate that it was caused by striking any obstacle in the walk, the theory that plaintiff’s feet slipped forward on the icy surface is much more reasonable than any other that can be based on the evidence. If the fall were caused by the mere slippery condition of the-walk it is conceded that there would be no right to recover for the injury received. It has been said by th4s and other courts repeatedly, and is the established law, that a jury cannot properly be allowed to determine disputed questions-of fact from mere conjecture. There must be some direct evidence of the fact, or evidence tending to establish circumstances from which a jury would be warranted in saying that the inferences therefrom clearly preponderate in favor-[377] of the existence of the fact, else the question should not go to the 'jury for determination at all. To allow a jury to reach a conclusion in favor of the party on whom the burden of proof rests, by merely theorizing and conjecturing, will not do. There must at least be sufficient evidence to remove the question from the realms of mere conjecture, else the trial court should pronounce the judgment of the law on the situation by taking the case from the jury when requested so to do. Sorenson v. Menasha P. & P. Co. 56 Wis. 338; Smith v. C., M. & St. P. R. Co. 42 Wis. 520; Morrison v. Phillips & C. Const. Co. 44 Wis. 405; Taylor v. Yonkers, 105 N. Y. 202; Finkelston v. C., M. & St. P. R. Co. 94 Wis. 270; Cawley v. La Crosse City R. Co., ante, p. 145; Asbach v. C., B. & Q. R. Co. 74 Iowa, 248; Philadelphia & R. R. Co. v. Schertle, 97 Pa. St. 450; Tyndale v. O. C. R. Co. 156 Mass. 503; Baulec v. N. Y. & H. R. Co. 59 N. Y. 357; Hughes v. Cincinnati, etc. R. Co. 91 Ky. 526.
In a case like this it is incumbent upon the plaintiff to show by evidence, with reasonable distinctness, how and why the accident occurred. Morrison v. Phillips & C. Const. Co., supra. To present two or more states of a case upon which a jury may theorize as to the real cause of the accident, putting one conjecture against another and determining which is the more reasonable, comes far short of making a case. Hayes v. Forty-second St. & G. S. F. R. Co. 97 N. Y. 259. An examination of the numerous authorities cited will disclose that the principle of law does not admit of question or exception, that where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to guess where the truth lies- and make that the foundation for a verdict. As said in effect by the learned court in Philadelphia & R. R. Co. v. Schertle, supra, the direct effect of such a course of procedure would [378] be to take the property of one person and pass it over to another by the mere form of law, ignoring the principles essential to make the administration of law and the administration of justice identical. The evidence here comes far short of what is said in many of the authorities cited to be clearly insufficient. The theory that plaintiff fell by reason of the walk being uneven is not as reasonable as that she fell because of its being merely slippery.
The conclusion reached is that there was a failure of proof as to the sidewalk being defective, and also a failure of proof as to whether plaintiff fell and received her injury by reason of the alleged defects in the walk. Hence, the court should have taken the case from the jury by directing a verdict in favor of the defendant, and for the same reason should have set the verdict aside and granted a new trial. -
By the Oowrt,— The judgment of the circuit court is reversed, and the cause remanded for a new trial..