CITY OF SUPERIOR v. OLT, 239 F. 100

EVANS, Circuit Judge (after stating the facts as above). Viewing the facts most favorably to the plaintiff, the question for determination on the issue of negligence is whether the presence of bricks or pieces of bricks, under the then existing circumstances, in a street otherwise sufficient for travel, presents a jury question. The liability of a city for damagés occurring through defects in the streets is in Wisconsin fixed by statute.

Section 1339 of the Revised Statutes of Wisconsin reads as follows: “If any damage shall happen to any person, his team, carriage or other property, by reason of insufficiency or want of repair of any * * * road in any town, city, or village, the person sustaining such damage shall have a right to sue for and recover the same against any such town, city or village.”- See Kawiecka v. City of Superior, 136 Wis. 613, 118 N. W. 192, 21 L. R. A. 1020; Morrison v. Eau Claire, 115 Wis. 538, 92 N. W. 280, 95 Am. St. Rep. 955; Kleiner v. Madison, 104 Wis. 338, 80 N.

W. 453. “A sufficient street” is at best a relative term. The same care is not required of a city in reference to its carriage way as to its- sidewalks. The city is required to keep its streets in a reasonable state of repair, but it meets the duty imposed upon it by the statute when it maintains the respective portions of the street in a reasonably safe condition in the light of the purpose for which such portions are intended.

The fact that a part of the sidewalk and tree bank as so blocked as to malee it necessary for pedestrians to take the carriage way is urged as a reason why the question of negligence should be left to the jury in the present case. Having by its action blocked travel on one sidewalk and a portion of the carriageway the city must anticipate that pedestrians would use the carriageway, and govern itself accordingly. The evidence tends to show the presence of several brick'and pieces of brick where the plaintiff fell.

The failure of the city to require the contractor to construct the two-foot board walk made it impossible for the plaintiff to pursue any well-defined course. The failure to fence off the pile of material required her to keep towards the center of the street. -The accident occurred on Monday, and if, as was testified to, no brick had been hauled for several days next preceding the accident, the-jury may have concluded that the brick had so lain in the street all that time.

Viewing all these facts as we are required to do, on this review of the court’s denial of a motion to direct a verdict for the defendant, we are unable as a matter of law to say that the street was sufficient. Whether the presence of brick in the numbers .and condition and for the time shown by the testimony was a defect presented a jury question. Defendant’s contention that the plaintiff was guilty of contributory negligence as a matter of law is untenable. Plaintiff was within her right when she took the carriageway. The street and all,of it was for public travel.

Of course, knowing that stray bricks were on the carriageway, she was required to proceed cautiously. Whether she exercised such care as the ordinarily careful person under like or similar circumstances would have exercised was also a question for the jury to determine. Dralle v. Reedsburg, 130 Wis. 347, 110 N. W. 210; Kelley v. Fond du Lac, 31 Wis. 179; Gerrard v. La Crosse C. R. Co., 113 Wis. 258, 89 N: W. 125, 57 L. R. A. 465; Nelson v. Shaw, 102 Wis. 274, 78 N. W. 417.

We find no error in the record, and the judgment is affirmed. (@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes