I am of the opinion that the record in this case contains ample evidence to sustain the verdict of the jury and the judgment thereon.
The majority opinion stresses the fact that the plaintiff slipped rather than tripped. I cannot see any significance in the point.
The undisputed facts are that the city of Appleton maintains a playing field over which the wind has a clear sweep. The cyclone fence which incloses the field causes snow to drift on the sidewalk adjacent to the field.
The plaintiff was injured when he fell upon this sidewalk on February 9, 1948. The city had failed to take care of the walk all winter. Upon complaint of pedestrians it made an attempt to remove the accumulation on January 15th, but did not succeed because of its frozen condition. There was some evidence that it then applied cinders. Subsequent drifting and snowfalls were ignored until after plaintiff was injured, when the condition was remedied.
The accumulation upon the sidewalk where plaintiff fell varied from four to fifteen inches and was ridged. It had existed in substantially the same condition for weeks.
Those facts justified the jury's finding of negligence. *Page 168
The only speculation in this case that I can observe is that offered in the majority opinion, — that if the city had used due care to remove the ice and snow "a drift removed in the afternoon would [not] be back the next morning."
If the city had used due care and removed the snow or applied cinders or chemicals at reasonable intervals and more snow accumulated notwithstanding such proper care, then of course there could be no recovery for resulting injuries. Those, however, are not the facts of this case.
In addition to the fact that since the cases of Hyer v.Janesville (1898), 101 Wis. 371, 77 N.W. 729, andSteele v. Chippewa Falls (1935), 217 Wis. 1,258 N.W. 181, chemicals for ice removal have been put in common use by municipalities, the facts in this case are greatly different.
In neither of those cases was the accumulation so great nor had it existed so long a time as here.
In the Hyer Case, supra, this court intimated at least that the facts alleged in the complaint, which were similar to the facts established upon the trial of this action, had existed, liability would have followed. The court said (pp. 373, 374):
"The most the evidence shows is that a few days before the injury there was a coating of about two inches in depth of snow, packed hard evenly over the walk by travel; that the walk had been in that condition for some time; that the weather turned warm, causing the snow to become soft, wet, and sloppy, and then suddenly turned cold, causing ice to form with such footprints therein as would naturally be made by travel under such conditions. The bed of ice and snow three to ten inches deep, mentioned in the complaint, does not appear to have been observed by witnesses, nor the high ridges spoken of, nor the long-continued defective condition."
It would not be unreasonable to require cities to remove snow under the circumstances here existing or to apply chemicals or cinders to protect pedestrians. *Page 169
I am satisfied that the evidence presented a jury question and that the judgment of the trial court should be affirmed.
I am authorized to say that Mr. Justice BROADFOOT concurs in this dissent.