Thomas v. City of Appleton

40 N.W.2d 575, 256 Wis. 163, 1949 Wisc. LEXIS 447

• Court: Wisconsin Supreme Court
• Decided: November 29, 1949
• Status: Published

Opinions

Brown, J.

The question is whether this case is ruled by Flyer v. Janesville (1898), 101 Wis. 371, 77 N. W. 729, and Steele v. Chippewa Falls (1935), 217 Wis. 1, 258 N. W. 181, which are the two most recent of our decisions on the subject which have been cited to us. In the former there was a verdict for plaintiff, judgment upon it, and on appeal the judgment was reversed. The complaint alleged that the sidewalk was covered with ridges of ice and snow against one of which the plaintiff struck her foot, causing her to fall. There were other allegations concerning notice to or knowledge by the city of the condition of the walk. Plaintiff testified that while she was walking on the walk she suddenly fell backward, striking first on her hips and then on the back of her head. The proof was that snow had accumulated from frequent falls to a depth of about two inches which had become softened by a thaw and then turned to ice with footprints indented therein. The court, page 376, held that if the fall was caused by the mere slippery condition of the walk the city was not liable but if she fell because her feet came in contact with an obstruction the action would lie. There was no evidence as to which had occurred and the jury was not permitted to guess.

In Steele v. Chippewa Falls, supra, ice and snow accumulated and a sloping sidewalk became very rough and slippery. It stayed that way for a long time. The trial court directed a nonsuit against plaintiff who had fallen, saying (pp. 3, 4) : “ ‘Undoubtedly it was dangerous and perhaps very dangerous in walking down hill on that slippery sidewalk, but that is one of the dangers that pedestrians have to contend with.’ ” The supreme court sustained the trial court and added (p. 4) : “There is no evidence in the case from which an inference could be drawn that the plaintiff stubbed her toe, caught her heel, or fell for any other reason than that she slipped upon a glary uneven surface caused wholly by natural conditions.”

In the instant case, Mr. Thomas testified he slipped; he slipped on top of the ridge where it was slippery; he did not trip.

It should be added that Mr. Thomas and those of his witnesses who spoke to the point testified that because of the topography of the place snow drifted over the walk continually. Thus his witness Manier said it gets drifted with the least little wind. Mrs. Manier said there is always considerable drifting from that large open space (Goodland Field). Mr. Schumacher said the snow would drift in. Mr. McHugh said the sidewalk was slippery in spots, snow would drift across and you could not see those spots. As summarized in the appendix: “There was sure a lot drifted. Goodland Field, if there is any wind you can go out and shovel six to eight inches off. It takes a light wind to drift it there. . . . On February 9th, . . . the condition of the sidewalk was bad. ... I don’t know whether the snow came from drifting across the field or from a snowfall.” Mr. Bauer testified to drifting. So did Mr. De Witt. And Mr. Thomas said regardless' of what way the wind blew, it drifted that snow.

No one, of course, can say how long it will take a drift to form across a walk. Given the presence of snow in the area, it depends on wind and weather, and plaintiff and his witnesses proved that the slightest wind made snowdrifts here. It would be an unreasonable burden to require the city to maintain the sidewalk free from drifts under such conditions and it would be pure speculation to assert that a drift removed in the afternoon would not be back the next morning.

Upon the record in this action and on the authority of the two cases cited herein, the judgment must be reversed.

By the Court.- — -Judgment reversed with directions to dismiss plaintiff’s complaint.