October 1, 1963 —
October 29, 1963.
APPEAL from an order of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit Judge. Affirmed.
For the appellant there was a brief by John K. Flanagan, city attorney, and William J. Sauer, assistant city attorney, and oral argument by Mr. Flanagan.
For the respondent there was a brief by Bosshard, Arneson Sundet and Patrick R. Doyle, all of La Crosse, and oral argument by Philip G. Arneson.
Order entered December 21, 1962, denying defendant's motion for summary judgment. Defendant appealed.
Plaintiff brought action against the city of La Crosse, claiming damages for personal injury. She alleged that her injury occurred when an automobile in which she was riding dropped into a depression in a city street, and the under-carriage hit a manhole cover.
The complaint alleged that the accident occurred at 8:45 p. m., March 11, 1962, at the intersection of Third and Pearl streets; the street was "insufficient and in lack of repair in that the intersection had washed out causing a depression;" said defect was known to the city, or in the exercise of ordinary care should have been known to the city.
The city moved for summary judgment and presented affidavits of the superintendent of streets and his employees, and a certified copy of a record of the weather bureau. These documents established that certain streets, including the intersection, had needed repair because of "breakup;" on March 9, 1962, all the holes were filled with crushed rock; the superintendent checked this and other repairs on the afternoon of March 10th and found the intersection in good condition; it was observed in good condition at 1 p. m., March 11th; on the morning of March 12th there were "a number of small holes" and the crushed rock had washed out because of traffic action and precipitation; there had been snow, sleet, and rain from 3 a. m., March 11th to 3 a. m., March 12th, 7.4 inches of snow and sleet and total water equivalent of .89 inches. The superintendent conceded that the filling with crushed rock was repair of a temporary nature, but asserted that permanent repairs were not practical because frost was in the ground.
Plaintiff presented two affidavits. Her attorney stated that Third street is a main-traveled arterial with extremely heavy traffic and is strictly supervised by the city police. He had discussed the matter with various employees of the police department and was informed that squad cars traverse Third street not less than six times per hour between 3 p. m. and 9 p. m. each day. Another individual asserted that on the same evening at 6:30 the front wheel of his car dropped into a depression at another point on Third street caused by washing away of gravel in a construction cut.
The circuit court concluded that there is a substantial issue of fact for determination and denied summary judgment.
It is undisputed that there had been holes within this intersection. Two days before the accident they were filled with crushed rock, but the repairs were washed out because of traffic action and precipitation which occurred over a number of hours. Holes reappeared. Their size is not shown in the affidavits except that the street superintendent called them "small." The alleged fact that there was a depression deep enough for the undercarriage of an automobile to strike a manhole cover was not specifically controverted.
The city's theory is that it has established that there were no holes eight hours before the accident and that, as a matter of law, such time is too short to charge the city with notice.
Plaintiff countered with the fact that the street is a main-traveled arterial with extremely heavy traffic and is strictly supervised by the police, and a similar accident occurred at a different point on the same street two hours earlier from a similar cause.
If these facts are developed at trial, we think the inferences could reasonably be drawn (1) that the city officers and employees ought, in the exercise of ordinary care, to have anticipated that the temporary repairs which had been made would be likely to be washed out under the weather and traffic conditions prevailing all day March 11th, and (2) that, the street being busy and closely supervised by the police, there was sufficient time and opportunity to observe the developing danger and erect warnings if repairs were not feasible.
"The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail."
The city relies on Strang v. Kenosha where the city had filled an excavation and repaired it when the fill settled. This court said "as a matter of law that the existence of the defect for a few hours would not charge the city with notice." Although the facts are somewhat similar, it does not appear in Strang that the street was a main-traveled artery, closely supervised by police. Neither did such facts appear in Murphy v. Milwaukee. Such facts are relevant in determining the length of time which must elapse before a city can be reasonably charged with notice.
(1921), 174 Wis. 480, 182 N.W. 741
In the affidavit of plaintiff's counsel he stated that he had been informed in discussions with employees of the police department of the frequency with which squad cars traverse Third street. That fact would be relevant, but was not properly put before the court. Depositions could have been taken if the informants were unwilling to give affidavits, or counsel might have identified them in his own affidavit, stated that affidavits had been refused, the reason for not taking depositions and set forth their statements given to him, and that he expected they would give such testimony at the trial. Their statements to counsel have not been shown to be admissions which could be used against the city as their employer. By the Court. — Order affirmed.