Stege v. City of Milwaukee

Wisconsin Supreme Court

Stege v. City of Milwaukee

86 N.W. 161, 110 Wis. 484, 1901 Wisc. LEXIS 229

DecidedMay 21, 1901

StatusPublished

This text of 86 N.W. 161 (Stege v. City of Milwaukee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stege v. City of Milwaukee, 86 N.W. 161, 110 Wis. 484, 1901 Wisc. LEXIS 229 (Wis. 1901).

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Opinion

WiNslow, J.

The evidence in this case certainly tends to show that the cover of the coal hole in question had been partially opened and left open nearly every day for several months prior to the plaintiff’s injury, and that when so opened it was a serious defect in the sidewalk. Covered coal holes and hatchways may lawfully exist in a sidewalk, but, if they are negligently left open for such length of time that the city authorities ought, in the exercise of reasonable diligence, to know and remedy the mischief, the city may become liable for injuries occasioned thereby to travelers exercising ordinary care. Whitty v. Oshkosh, 106 Wis. 87. That the plaintiff was, in the legal sense, a traveler upon the sidewalk is not open to reasonable doubt. Though not walking longitudinally along the sidewalk, he was rightfully using it for a lawful and necessary purpose, and was plainly entitled to the protection of the law concerning defective highways. There was absolutely no evidence to show that the cover was in any way defective, or liable to slip, when properly in position, but there was ample evidence that upon the day of the accident it had been propped open a few inches, and left in that condition until the plaintiff stepped upon it.

It is said that the plaintiff was guilty of contributory negligence, as matter of law, in walking backward, and in not seeing the condition of the cover. Neither of these contentions can be sustained. It is doubtless true that if a man, without cause therefor, were to walk along the street backward, or with his eyes shut, for any considerable distance, and should fall into a hole, he would be chargeable with contributory negligence; but that is not this case. The plaintiff here was simply using a very ordinary and usual method of swinging the end of the long scantling which he was carrying around the trees so that he might take it to the steps which he was repairing, and in so doing he stepped backward a few steps. It was clearly for the jury to say [488]*488whether his action was consistent with ordinary care under the circumstances. Nor can it be said that he was negligent, as matter of law, because he had not seen the condition of the cover. He had been at work less than an hour, and his work had been upon the steps of the building upon the other side of the sidewalk. He was evidently busily engaged, and giving his entire attention to his job. Under such circumstances it cannot be said as matter of law that he was negligent in not seeing that the cover was propped up. This was also a question for the jury. Cantwell v. Appleton, 71 Wis. 463. The verdict was based upon sufficient evidence, and it plainly sustains the judgment. There are no other questions which require discussion.

By the Court.— Judgment affirmed.

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WiNslow, J.

The evidence in this case certainly tends to show that the cover of the coal hole in question had been partially opened and left open nearly every day for several months prior to the plaintiff’s injury, and that when so opened it was a serious defect in the sidewalk. Covered coal holes and hatchways may lawfully exist in a sidewalk, but, if they are negligently left open for such length of time that the city authorities ought, in the exercise of reasonable diligence, to know and remedy the mischief, the city may become liable for injuries occasioned thereby to travelers exercising ordinary care. Whitty v. Oshkosh, 106 Wis. 87. That the plaintiff was, in the legal sense, a traveler upon the sidewalk is not open to reasonable doubt. Though not walking longitudinally along the sidewalk, he was rightfully using it for a lawful and necessary purpose, and was plainly entitled to the protection of the law concerning defective highways. There was absolutely no evidence to show that the cover was in any way defective, or liable to slip, when properly in position, but there was ample evidence that upon the day of the accident it had been propped open a few inches, and left in that condition until the plaintiff stepped upon it.

It is said that the plaintiff was guilty of contributory negligence, as matter of law, in walking backward, and in not seeing the condition of the cover. Neither of these contentions can be sustained. It is doubtless true that if a man, without cause therefor, were to walk along the street backward, or with his eyes shut, for any considerable distance, and should fall into a hole, he would be chargeable with contributory negligence; but that is not this case. The plaintiff here was simply using a very ordinary and usual method of swinging the end of the long scantling which he was carrying around the trees so that he might take it to the steps which he was repairing, and in so doing he stepped backward a few steps. It was clearly for the jury to say [488]*488whether his action was consistent with ordinary care under the circumstances. Nor can it be said that he was negligent, as matter of law, because he had not seen the condition of the cover. He had been at work less than an hour, and his work had been upon the steps of the building upon the other side of the sidewalk. He was evidently busily engaged, and giving his entire attention to his job. Under such circumstances it cannot be said as matter of law that he was negligent in not seeing that the cover was propped up. This was also a question for the jury. Cantwell v. Appleton, 71 Wis. 463. The verdict was based upon sufficient evidence, and it plainly sustains the judgment. There are no other questions which require discussion.

By the Court.— Judgment affirmed.

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86 N.W. 161, 110 Wis. 484, 1901 Wisc. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stege-v-city-of-milwaukee-wis-1901.

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