Lawver v. City of Park Falls

151 N.W.2d 68, 35 Wis. 2d 308, 1967 Wisc. LEXIS 1206

• Court: Wisconsin Supreme Court
• Decided: June 6, 1967
• Status: Published

Opinions

Hallows, J.

While the plaintiff assigns numerous errors in urging reversal, we will confine our opinion to two which are dispositive of this appeal, namely, whether there was sufficient evidence to find both parties negligent and whether the apportionment of causal negligence can be sustained.

Laura Lawver lived north of Division street in the city of Park Falls. It was her custom in going to and from downtown Park Falls to use the sidewalk on the north side of Division street. Division street is an east and west street and is crossed by Fifth avenue and, farther west, also by the Omaha railway track. The fall occurred on the afternoon of March 20, 1963, about 75 feet west of the intersection of Division street and Fifth avenue. On this day and for some period prior thereto the north sidewalk of Division street between Fifth avenue and the Omaha tracks had not been plowed or shoveled and was not usable by pedestrian traffic. There is a dispute in the testimony whether the south sidewalk of Division street was shoveled. However, snow had been plowed from Division street and formed banks along both of its sides to a height of three to seven feet. A strip of Division street about two feet wide and running adjacent to the snowbanks on each side was covered by rough, rutted ice caused by automobiles driving in slush during thawing weather which subsequently froze. Between these strips of rough ice and ruts the center of the street was covered with smooth, slippery ice.

On the day of the accident it had snowed. While returning home from downtown Park Falls, Mrs. Lawyer, after reaching the jog in Division street at Fifth avenue, walked west in the roadway of Division street on the northerly portion of the plowed area near the snowbank, slipped and fell, sustaining personal injuries. She testified she was walking slowly between the humps and ruts of ice, feeling with her feet and looking down. She also testified her right foot hit a hump of ice or frozen snow about five inches high and about five inches wide and a foot and a half long. Her left foot went into and was held by a rut or hole as she fell, injuring her left ankle. Although the day was not dark and visibility was good, Mrs. Lawver testified she did not see the hump until after she had stumbled over it and she would not say that the snow hid the hump.

The jury was asked whether the city was negligent “. . . with respect to providing a way of travel, without compelling an unreasonable departure from the normal route of travel, alternate to the north sidewalk, for persons going between the Omaha railway track and Fifth Avenue on Division Street in the City of Park Falls, which could be used with reasonable safety by the ordinarily prudent traveler on foot.” The jury answered this question “Yes” and also found the plaintiff was causally negligent in walking on Division street “. . . with respect to caring for her own safety.”

The plaintiff contends there is no credible evidence to sustain a finding that the sidewalk on the south side of Division street was cleared of snow and usable for pedestrian traffic and therefore the jury could not find the plaintiff negligent for walking in the street. Furthermore the plaintiff argues she was not negligent in walking close to the snowbanks in the street and the fresh snow had concealed the hump and the rut. Apparently the jury found the south sidewalk was not clear of snow and therefore the city was negligent in forcing the plaintiff to walk in the street. There is no question the city was negligent in not plowing or shoveling the snow on the north sidewalk but we cannot agree with the plaintiff’s contentions that she could not be negligent in her manner of walking or in her position in the street because she was forced to walk there.

There is evidence she might have walked closer to the center of the street which the jury could have found to be relatively safer because it was less rutted. If the plaintiff was fearful of traffic approaching from her rear if she walked closer to the center of the street than she did, she could have walked on the other side of the center line of the street facing the traffic. This position is prescribed for pedestrians by sec. 346.28 (1), Stats. Thus the jury could have reasonably found the plaintiff should have walked nearer the center of the road. The plaintiff relies on Squillace v. Village of Mountain Iron (1946), 223 Minn. 8, 26 N. W. (2d) 197; but this case is not in point. The court there said the city was negligent in forcing people to walk in the street close to a sloping snowbank, but the case does not hold a person injured while walking along the edge of the snowbank in the street could not be contributorily negligent. There is also evidence from which the jury could have found the plaintiff was negligent as to lookout even though there was fresh snow on the ground. She was looking but she did not see what was there to see.

However, the apportionment of negligence is such that it cannot be sustained. We think as a matter of law that 75 percent causal negligence attributed to a pedestrian forced to walk in the public street and who stumbles over icy ruts is unreasonably disproportionate to the negligence of the city in failing to keep its sidewalks shoveled. We have said many times the apportionment of negligence is for the jury and will not be upset except in unusual cases. Mullen v. Reischl (1960), 10 Wis. (2d) 297, 103 N. W. (2d) 49; Maus v. Cook (1961), 15 Wis. (2d) 203, 112 N. W. (2d) 589. However, in unusual cases we have upset the apportionment and either partially determined the apportionment or granted a new trial. In Firkus v. Rombalski (1964), 25 Wis. (2d) 352, 130 N. W. (2d) 835, we could not determine the apportionment as a matter of law and therefore granted a new trial on the issue of apportionment. In other cases this court did not accept the apportionment of negligence and found as a matter of law the plaintiff’s negligence' equaled or exceeded that of the defendant, see e.g., Kornetzke v. Calumet County (1959), 8 Wis. (2d) 363, 99 N. W. (2d) 125, or that the negligence of two codefendants was equal, see Ogle v. Avina (1966), 33 Wis. (2d) 125, 146 N. W. (2d) 422.

Here, we think the apportionment of negligence cannot be sustained either on the evidence or as a matter of law. While it can be argued that public sidewalks in small towns in the far north which are subject to frequent snowfalls and little pedestrian traffic cannot be kept as clean of snow as the city streets in a metropolitan city in southern Wisconsin, nevertheless a city does have the duty to keep its sidewalks reasonably safe under all the conditions for pedestrian traffic. The conditions and circumstances to be considered in determining the reasonableness of attempts to comply with such duty are discussed in Stippich v. Milwaukee (1967), 34 Wis. (2d) 260, 149 N. W. (2d) 618, and Westler v. Milwaukee (1967), 34 Wis. (2d) 272, 149 N. W. (2d) 624.

This court cannot hold as a matter of law that the negligence of Laura Lawver under the circumstances of this case was equal to or exceeded that of the defendant and therefore under our present rules of appellate practice, the judgment must be reversed and a new trial granted on the issues of negligence, causation and apportionment. While the plaintiff characterizes the amount of damages as low and extremely conservative, she admits the verdict is supported by the evidence. The amount is not so low as to be unreasonable or subject to the Powers rule. Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393. Since the plaintiff’s complaint is not sufficient to constitute a challenge to the evidence, the new trial will not include the element of damages. Since there must be a new trial, we need not discuss the other contentions of the plaintiff except to state we have considered them and find them to be without merit.

By the Court. — Judgment reversed, and a new trial granted on all issues excepting damages.