Summary
In Jacobson v. City of Milwaukee, 262 Wis. 256, 55 N.W.2d 1, failure to repair a depression 1 1/2 inches in depth where ice formed did not create liability on the part of the municipality for an injury blamed to such defect.
Summary of this case from Pearson v. Boise CityOpinion
September 17, 1952 —
October 7, 1952.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
Sydney M. Eisenberg and R. Bamberger, both of Milwaukee, for the appellant.
For the respondent there was a brief by Walter J. Mattison, city attorney, and Arthur Saltzstein, assistant city attorney, and oral argument by Mr. Saltzstein.
Action for damages by plaintiff Annie Jacobson against the city of Milwaukee for injuries sustained in a fall on the sidewalk in the city of Milwaukee. The case was tried to a jury and a special verdict was returned in plaintiff's favor. Upon motions after verdict the trial court set aside the verdict on the ground that it was not supported by the evidence, and from a judgment dismissing the complaint, plaintiff appeals.
On March 7, 1948, plaintiff Annie Jacobson, a woman about seventy years old, while walking south on the east side of North Eleventh street approaching West Michigan street in the city of Milwaukee, fell on the sidewalk and sustained injuries to her left arm. There had been a drizzle during the morning, then freezing, and later snow. Plaintiff testified that there was ice and snow on the sidewalk where she fell. She told the policeman who called to investigate the accident: "I was walking along on the sidewalk. I slipped and fell. I slipped and fell in front of 552 North Tenth street. The sidewalk was icy."
Plaintiff claimed that her heel caught in a hole in the sidewalk.
"I just was walking along slowly and I saw the defects along the sidewalk, and the lumber and the dirt, and I went to go around that tree to avoid the ice and I went into it deeper because it was ice on it. I went in deeper than I thought I did, and there I laid there, stunned, and a man come along and picked me up, and I just about knew where to tell him where to take me, and he took me to that lady's house, Mrs. Reed that is here in the courtroom today."
She could not tell exactly how deep the hole was. She saw it after she fell, when she got up; she judged it was four and one-half inches deep. At one point in her testimony she said her heel was torn off her shoe, the heel remaining in the hole after she fell. At another point she testified that after she fell the heel was loose and that she pulled it off her shoe. The man who helped her to the Reed home was a stranger and she did not get his name.
Charles Reed, to whose home plaintiff was taken after her fall, testified that he had lived in the neighborhood about eight or nine years and was well acquainted with the condition of the sidewalk; but until he came into court he did not know that plaintiff fell on the east side of the street.
"I didn't know which side, to be honest with you, but I took it for granted what she told me, it was the west side."
He did not know where plaintiff fell, but on being questioned with regard to the condition of the sidewalk in the general location described by plaintiff, he testified that on one occasion when he took his baby down the hill in a coaster wagon he ran the wheel into a broken piece of sidewalk and almost tipped over the wagon. He testified as to several cracks and holes in the sidewalk being three, four, or five inches deep, but he had never measured the holes.
John Wernette, an employee of the city engineer's office, made an investigation of the sidewalk on April 1, 1948, immediately after the defendant received notice of plaintiff's claim. He testified that he found the sidewalk "badly cracked, and top sections of the sidewalk slabs were spalled off with the stones exposed in places, and some were covered with dirt," but that by actual measurement "the worst defect at that time was one and a half inches different than the top . . . surface of the sidewalk."
Upon the trial plaintiff testified that the accident occurred about half way between Michigan and Clybourn on Eleventh street. Later, she testified that she fell at the back entrance of a house on the southeast corner of Michigan and Eleventh streets, or between there and the corner. Upon an adverse examination taken a few days before trial she pointed out the sidewalk opposite the rear entrance of a residence located on the southeast corner of Michigan and Eleventh streets. During the trial the court and jury visited the scene and plaintiff then pointed out a spot which was not described in the record but which later in plaintiff's testimony is shown to be different from the place she pointed out on the adverse examination:
"Q. Now, it is true, isn't it, Mrs. Jacobson, that the place which you pointed out today is different from the place that you pointed out last Friday? A. Yes, it was, but I just couldn't remember the spot . . . until I thought today and looked at the house. And I thought when I passed there today that everything had been remodeled because the houses were remodeled. I didn't notice the sidewalks so particularly as I did today. Today I just took a view and walked back and looked as when I got up. I just happened to see it was a garage; it was no alleyway there; it was a garage, and it was just a little ways up from that back entrance. That is just about the exact point where I fell."
In our opinion, the trial court was correct in concluding that the verdict was not supported by the evidence.
The record is replete with instances showing the uncertainty and confusion in the mind of the plaintiff. Several such instances are referred to in the statement of facts given above.
In the first place, she was not at all certain where it was that she fell. When she related the occurrence to the police officer immediately after the fall, she said that she slipped on the icy sidewalk, and we are inclined to believe, as the trial court did, that the proximate cause of her injuries was the slippery surface of the sidewalk caused by ice and snow. She said that her heel was torn loose in the fall and she believed it had caught in a hole, but her observation of the defect was made after her fall when she was "stunned" and her estimate that the hole was four and one-half inches deep seems to be based more upon what someone else told her than upon her own observation.
On the other hand, there is the testimony of John Wernette who investigated the sidewalk and found that the worst defect measured one and one-half inches deep.
Under these circumstances the testimony of the plaintiff, as well as that of the witness Reed, whose observation of the alleged defects in the sidewalk was also a casual estimate, must yield to that of Wernette which was based on actual measurements.
"This court has often held that the testimony of disinterested and unimpeached witnesses on subjects like measurements and distances, and which is based on memory or casual observation and is at best only an estimate, must yield to that which is based on actual measurement." Wanta v. Milwaukee E. R. L. Co. (1912), 148 Wis. 295, 298, 134 N.W. 133. See also Serkowski v. Wolf (1947), 251 Wis. 595, 30 N.W.2d 223.
In McCormick v. Racine (1938), 227 Wis. 33, 36, 277 N.W. 646, this court reviewed the facts of many cases in which alleged defects in sidewalks and crosswalks were considered, and concluded that,
". . . the two and three-eighths-inch difference between the adjacent cement squares of the sidewalk in question did not constitute an actionable insufficiency or want of repair within the meaning of sec. 81.15, Stats., as a matter of law, in the absence of other conditions or surrounding circumstances that would warrant finding that there was such an insufficiency or want of repair; . . ."
Even assuming that the plaintiff's fall was caused by the "worst" defect of one and one-half inches, as found by Wernette, we cannot conclude upon the record before us that such defect was actionable.
We have repeatedly held to the rule that the decision of the trial court on the sufficiency of evidence on a motion to set aside the verdict must prevail unless it clearly appears from the record to have been erroneous. Slam v. Lake Superior T. T. R. Co. (1913), 152 Wis. 426, 140 N.W. 30; Nitka v. Van Camp (1949), 256 Wis. 119, 40 N.W.2d 570; Wear v. Northern States Power Co. (1952), ante, p. 9, 53 N.W.2d 777.
The decision of the learned trial court is amply sustained by the record, and the judgment must be affirmed.
By the Court. — Judgment affirmed.