March 2, 1959 —
April 7, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by D. J. Regan of Milwaukee.
For the respondents there was a brief by John J. Gehringer and James W. Lane, both of Milwaukee, and oral argument by Mr. Gehringer.
For the defendant city of Wauwatosa there was a brief by Milton F. Burmaster, city attorney, attorney, and Herbert L. Mount of Milwaukee of counsel, and oral argument by Mr. Mount.
On December 29, 1956, John Kunz, appearing by a guardian ad litem, and William, his father, brought action against the city of Wauwatosa and Adelbert J. Beyer. Damages were sought for personal injury sustained by John on May 6, 1956.
The accident occurred when John, then aged six, fell from his bicycle on the sidewalk in front of the premises at 2156 North Sixty-Third street in Wauwatosa. Beyer and his wife were the owners of the premises. A concrete block in the sidewalk had been raised by the roots of a tree and temporary repairs had been made by the city. In the complaint plaintiffs set forth a cause of action against the city, alleging that the sidewalk was defective and the city was negligent in its repair; in a second cause of action they alleged that Beyer negligently failed to maintain the bank and lawn adjoining the sidewalk, and that as a result, mud had accumulated on the sidewalk at the point where the blocks were at different levels; in a third cause of action it was alleged that Beyer had maintained a public nuisance by allowing the dirt and mud to drain off his land onto the sidewalk; and in a fourth cause of action, that John's injuries were the result of the joint negligence of the city and Beyer.
In a discussion among counsel and the court with respect to the framing of the verdict, counsel for the plaintiffs stated that he was willing to have the questions as to the property owner limited to negligent maintenance with respect to the accumulation of mud without any separate question upon the question of whether a nuisance was maintained. Upon the trial the jury found that the city was not negligent as to the manner in which it repaired the sidewalk and that Beyer was causally negligent in respect to permitting mud to accumulate on the sidewalk. The court on June 9, 1958, entered judgment upon the verdict in favor of plaintiffs and against Beyer for the damages found by the jury ($2,000 for John and $185 for his father), and costs. The judgment also awarded costs to the city and against John. Beyer appealed.
The sidewalk in question is on the east side of Sixty-Third street and there is a slight slope to the south along the walk. A tree in the strip between the sidewalk and the street had, through its roots, raised one block of the sidewalk above the level of the adjoining blocks to the north and to the south. The northeast corner of the block was one-fourth inch higher than the block to the north and the northwest corner of the block was three and one-fourth inches higher than the block to the north. In late 1955 this condition was observed by a city inspector and a temporary repair was made by placing a quantity of asphalt just north of the raised block. This material extended 17 inches to the north along the east line of the sidewalk and 20 inches to the north along the west line of the sidewalk. The surface of the asphalt was sloped so that it rose from the level of the northerly square to meet the level of the raised square. John's father inspected the area shortly after John's accident and found mud on the northerly block and saw skid marks from the bicycle wheels in the mud. The mud varied from a thin layer to approximately one-half inch deep and appeared to have run down the steep bank of the lawn. He described the lawn as partially covered with grass.
John described his accident at the trial:
"Well, I was riding my bike, I guess I was going around the block, and then when I came to this bump I must have slipped on the mud with the tires and the bike flew onto the bump and I went on — I flew onto the cement."
There were no eyewitnesses and John was unconscious until he was carried into his home after his fall.
It was not raining at the time of the accident, but it had been raining before it, and the sidewalks were wet. Mr. Beyer estimated that the height of the bank is approximately five feet above the sidewalk level. He did not live on the premises but made regular visits to collect the rent. He testified that there has always been a problem with reference to keeping grass on the bank, although he had never observed an accumulation of mud on the sidewalk. The police officer who was called after the accident observed mud on the sidewalk and observed tire or skid marks. One of the city's engineers testified that the grass was rather sparse; that the slope was similar to other banks in the vicinity, but probably the grass was in a little poorer condition. He testified that the laying of the asphalt was a temporary repair, pending replacement of the sidewalk square during the construction season of 1956. He had examined the scene of the accident on June 8, 1956 when certain pictures were taken and one of the pictures shows a certain amount of mud on the sidewalk north of the asphalt at that time. He testified that because of the pitch of the sidewalk generally toward the south, the fact that the one slab was raised, and the parkway between the sidewalk and the curb was somewhat higher than the lower slabs, a dam was created which caused the mud to accumulate. He testified with reference to the bank next to the sidewalk that he "didn't notice any rivulets, but it was a very substandard terrace and water coming down from the bank would very definitely bring this mud onto the sidewalk."
John's father testified that he had known of the dislocation of the slabs prior to the accident; that he would say the condition of the walk would be dangerous, but had not reported it. He had seen the mud on the sidewalk on some occasion before the date of the accident, but he did not say when.
The evidence shows that soil was probably washing off Beyer's steep lawn embankment at a greater rate than if the lawn had been better kept. It also appears that the accumulation of mud on the sidewalk was north of the raised block. The sidewalk sloped downward toward the south and, had the raised block not been an obstruction, there presumably would have been no accumulation of mud. The evidence shows that the raised block had been observed in late 1955, but the only testimony as to the presence of mud before the accident gave no indication of when it had been observed. The jury evidently considered that the city's repairs were reasonably adequate so far as the difference in level was concerned.
Abutting owners and users of the sidewalk have been held liable for obstructions or dangerous conditions on the sidewalk resulting from negligence. Adlington v. Viroqua (1914), 155 Wis. 472, 144 N.W. 1130 (discharging accumulated water which froze on sidewalk); Smith v. Clayton Construction Co. (1926), 189 Wis. 91, 206 N.W. 67 (stretching hose across sidewalk); Johnson v. Prange-Geussenhainer Co. (1942), 240 Wis. 363, 2 N.W.2d 723 (water from a defective drainpipe flowing onto sidewalk and freezing); Heims v. Hanke (1958), 5 Wis.2d 465, 93 N.W.2d 455 (water being spilled on sidewalk and freezing). Owners who obstruct or interfere with a road or sidewalk in such a way as to create a defective and dangerous condition have been held liable for maintaining a nuisance. Holl v. Merrill (1947), 251 Wis. 203, 28 N.W.2d 363 (excavation under and next to walk and negligent replacement of earth causing sidewalk to sink); Smith v. Congregation of St. Rose (1953), 265 Wis. 393, 61 N.W.2d 896 (ice on sidewalk resulting from overflow of defective eaves troughs). In order to substantiate a claim of nuisance it must be shown that the dangerous condition existed long enough so that by the exercise of ordinary care the defendant should have discovered the danger and removed it before the accident. Brown v. Milwaukee Terminal R. Co. (1929), 199 Wis. 575, 590, 224 N.W. 748, 227 N.W. 385; Smith v. Congregation of St. Rose, supra; and Walley v. Patake (1956), 271 Wis. 530, 542, 74 N.W.2d 130.
In order to sustain any judgment for plaintiff in the case before us, we would need to reach an affirmative answer to one of two questions: (1) Has it been shown that Beyer's failure to maintain a better terrace was a failure to exercise ordinary care? (2) If not negligent, was he nevertheless liable for nuisance because the accumulation of mud constituted a dangerous condition?
(1) Negligence. The condition of the terrace was described as "very substandard" with grass that was rather sparse and probably in a poorer condition than others in the vicinity. As to the quantity of soil carried from the terrace, there were no obvious marks of erosion, and presumably, there was not enough to accumulate on the sidewalk if the one raised block had not held it back. The soil was carried onto the sidewalk by the ordinary drainage of surface water, and the case is somewhat different from those cited where water was artificially collected and negligently permitted to flow upon the sidewalk. Assuming that an owner could be held liable for negligence in failing to prevent erosion and thus permitting a dangerous condition to develop on the sidewalk or highway, we conclude that the evidence here as to the condition of the terrace and the quantity of mud carried from it by drainage is insufficient to sustain a finding of negligence.
(2) Nuisance. If there were to be any liability imposed on the owner in this case, it would have to be upon the theory that although he was not negligent in maintaining his terrace, the drainage from his property created a dangerous condition which he was obliged to remove after he knew or ought in the reasonable exercise of care to have known of the existence of the danger. Although plaintiffs were satisfied upon the trial to have no separate question submitted as to the existence of a nuisance, we have examined the record for evidence which might sustain a finding. Assuming that the mud which had accumulated by the time of the accident could properly be considered to create a dangerous condition, there was no proof in this record as to when the mud began to accumulate or how long before the accident it had accumulated to an extent that the owner should have observed the danger and corrected it. We conclude that the evidence would not have sustained a finding of nuisance if that question had been submitted.
By the Court. — Judgment reversed in so far as it awards recovery from defendant Beyer; cause remanded with directions to dismiss the complaint.