Rheinschmidt v. City of Tomah

155 N.W. 122, 162 Wis. 242, 1916 Wisc. LEXIS 130

• Court: Wisconsin Supreme Court
• Decided: February 1, 1916
• Status: Published

Opinion

The following opinion was filed December 7, 1915 :

Masshall, J.

Was the trial court, clearly wrong in holding that a jury could not justly find that the traveled way in question was not reasonably suitable for public use ?

It is not often that a decision by the trial court that the evidence does not present a jury question is disturbed on appeal, and that is so, in the main, because of the superior facilities possessed by such judge for understanding the exact situation required to be dealt with. That advantage is more or less helpful according to circumstances. In this case it is not particularly significant since there is no considerable conflict in the evidence, as the' trial court held, and the pictorial representation of the place of the accident, affords us about as good an opportunity as such judge had for understanding the evidence.

It must be conceded that there was ample evidence tending to prove that the sidewalk area which had been used for years was defective, in that the old pathway had been excavated by wear and washing so that, at one point, the track was eleven inches or more below the surface of the ground on the south side, and the depth varied each way from the deepest place until at a few feet therefrom it coincided with the general level. Whether the bottom of the depression was smooth or there were steps in it caused by washing, was’ disputed, though there was evidence tending to prove the latter and it was corroborated by evidence that the conditions was such that a new pathway had been made around the depression which had been used for a long time and was so close thereto that a side-step by one traveling thereon was liable to cause him to stumble or step into it. Let it be conceded that the side of the depression sloped from the brink to the bottom, as the trial court suggested, and the photographs introduced in' evidence support, yet, it is not at all unlikely that, in case of a person using the diverging pathway in the nighttime and being required to step aside to allow another' coming from the opposite direction to pass him, he would naturally reach so far down the side of the slope as to momentarily lose control ■of his movements and fall. The plaintiff did so, and received the injury complained of. Other persons had previously met with somewhat similar difficulties and the condition which caused the same had existed for a long time.

The trial judge appears to have given rather too much significance to evidence that the bottom of the old pathway was smooth and some eighteen inches aside from the traveled way .around it, so that one walking on the latter, would have to take quite a wide side-step to reach the former. A moderate side-step, seemingly, would be siifficient, in the nighttime, .as before suggested, to start one, uncontrollably, into the depression, as there is evidence to indicate, was what happened in the particular case.

Now, in view of the fact that it was the duty of the respondent to keep the traveled way reasonably safe for nse by night as well as by day, and the peculiar situation rendering it probable that, in the nighttime, a person might fall into the depression in the old pathway, as appellant did, it seems quite clear that the trial court was wrong in holding that there was no foundation in the evidence for the jury finding that the way was not reasonably safe for public use. The judge seems to have given too much significance to the circumstance that the sidewalk area had not been prepared by the municipality for public travel, and was not used to any great extent. It was a proper place for such travel and had béen used therefor a 'long time. Therefore the responsibility in respect thereto was practically the same as if it had been a prepared way. James v. Portage, 48 Wis. 677, 5 N. W. 31. It was there held that customary use of one side of a street as a footway imposes on the municipality in which it is situated the duty to keep it in a proper state of repair and that,, if the same becomes “so defective as to render travel over the-same unsafe, and the city takes no measures to warn the public against using the footway, the city becomes liable to any traveler who may suffer an injury from such defective foot-way without his fault.” In view of that well settled principle, we are inclined to the view that the trial court may have .applied a wrong rule of law to the evidence. In any event, we are constrained to hold that there was a jury question in respect to whether the traveled way was suitable for use or not, and that the finding made by the jury should not have been disturbed.

The next and only other question is: Did the trial court err in holding that appellant, as a matter of law, was guilty of contributory negligence from the fact that he was familiar-with the defect ?

In respect to the last question, it seems a wrong rule was-applied to the evidence. It has often been held that a person in using a public traveled way is not bound, at his peril, to remember and avoid danger from a defect in sucb way with which he is familiar. In the absence of any reasonable excuse for not avoiding the danger, and a personal injury resulting, there is a presumption of negligence, but, in case of .such excuse, a jury question is presented as to whether ordinary care was exercised or not. Wheeler v. Westport, 30 Wis. 392; Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322; Collins v. Janesville, 111 Wis. 348, 356, 87 N. W. 241, 1087. In the last case cited it was said: “The presumption [of negligence from knowledge of the defect] is rebuttable ■and gives way so readily to explanatory circumstances that any reasonable excuse for the forgetfulness is sufficient to carry the case to the jury on the question of the plaintiffs contributory negligence.” Here there was an excuse which a jury might reasonably say was reasonable. The accident happened in the nighttime. The appellant, probably, did not see the exact location of the dangerous part of the depression. He suddenly met a person coming from the opposite ■direction, and his mind was immediately occupied with the idea of giving way so such person could pass. He testified that he, momentarily, took his mind off the subject of the defect and stepped to the right to give the oncoming person the right of way, and that, in doing so, he went into the hole. In view of that evidence, whether his conduct was consistent with ordinary care was a fair jury question.

It follows that the judgment appealed from must be reversed, and the cause be remanded with directions to reinstate the answers which were set aside and to render judgment on the verdict in plaintiff’s favor.

By the Court. — So ordered.

A motion for a rehearing WRS denied, with $25 costs, on February 1, 1916.