Kawiecka v. City of Superior

118 N.W. 192, 136 Wis. 613, 1908 Wisc. LEXIS 260

• Court: Wisconsin Supreme Court
• Decided: November 10, 1908
• Status: Published

Opinion

BaRNes, J.

Generally speaking, insufficiency or want of repair in a highway is a question of fact for the jury, under instruction from the court as to what is meant by these terms in the statute. Wheeler v. Westport, 30 Wis. 392. And the question is always one for a jury, unless conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy. When the conditions shown are such that different minds may draw different inferences and arrive at different conclusions, the jury, and not the court, must make the ultimate determination. Prahl v. Waupaca, 109 Wis. 299, 85 N. W. 350. Undoubtedly defects in a highway may be relied upon as a basis for recovery for injuries sustained, in reference to which it is the duty of the court to hold as a matter of law that such alleged defects do-not constitute an insufficiency or want of repair within the meaning of the statute. Cook v. Milwaukee, 24 Wis. 270; S. C. 27 Wis. 191; Kleiner v. Madison, 104 Wis. 339, 80 N. W. 453; Burroughs v. Milwaukee, 110 Wis. 478, 86 N. W. 159; Dapper v. Milwaukee, 107 Wis. 88, 82 N. W. 725; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Koepke v. Milwaukee, 112 Wis. 475, 88 N. W. 238; De Pere v. Hibbard, 104 Wis. 666, 80 N. W. 933; Cooper v. Waterloo, 98 , 74 N. W. 115. A city is not bound to keep its streets or sidewalks at all times in a condition of absolute safety, but only reasonably safe. Kleiner v. Madison, supra; Wheeler v. Westport, supra; Morrison v. Eau Claire, 115 Wis. 538, 92 N. W. 280; Vass v. Waukesha, 90 Wis. 337, 63 N. W. 280.

In view of tbe foregoing principles, which appear to be well established, it remains to be considered whether the case before ns is one wherein the conclusion reached by a jury should determine the sufficiency or insufficiency of the sidewalk in question, or one wherein the court should hold as a matter of law that there is no room for controversy upon the subject. It is not always easy to determine just where the province of the court in passing upon such a question ends and that of the jury begins. For many reasons that might be enumerated, it is well nigh impossible for municipalities to keep streets and sidewalks in perfect condition at all times. ■Slight inequalities will almost unavoidably be found in sidewalks in our cities over which there is a large volume of travel. Because of the serious problem that confronts municipalities in reference to keeping their highways in an efficient state of repair, the court in construing sec. 1339, Stats. (1898), has not required them to keep such highways in perfect condition, but only reasonably safe for travel. Under the decisions cited the trial court was right in holding that the sidewalk in question was reasonably safe for travel, and that the defect complained of was too trifling and inconsequential to create a basis for a right of action under said sec. 1339.

By the Court. — Judgment affirmed.