
    Hakenson, Respondent, vs. City of Neillsville, imp., Appellant.
    
      February 20
    
    March 11, 1913.
    
    
      Municipal corporations: Injury from defective sidewalk: Negligence: Contributory negligence: Evidence: Special verdict: Jury: Talc-ing judge’s charge to jury room: Damages.
    
    1. In an action against a city for personal injuries sustained in a fall upon a sidewalk, the evidence is held to-sustain findings by the jury to the effect that the sidewalk was defective and out of repair in that the outer edge was six inches higher than the inner edge and that'a slippery ridge of ice and snow three inches thick had existed thereon near the outer edge for three weeks immediately preceding the accident.
    2. Upon the evidence in such case — showing, among other things, that the walk was extensively used by the public and had been so used for a considerable time while in said condition; that a portion of it sufficiently wide for pedestrians to use was clear of snow and ice; and that plaintiff was using it in the accustomed way, when she met another traveler, necessarily stepped aside, and was thus brought upon the icy portion — it is helcL that she was not guilty of contributory negligence as matter of law, even though she may have known the condition of this walk and that the walk on the other side of the street was safe.
    3. Refusal to submit in the special verdict a question as to whether or not anything diverted plaintiff’s attention at the time she fell was not error, that matter being necessarily embraced in the question submitted as to her contributory negligence.
    4. It is not prejudicial error to permit the jury to take the written charge with them into the jury room.
    5. Where plaintiff suffered a partial dislocation of her hip joint, a fracture of the neck of the femur, and a permanent shortening of the leg of about an inch; was confined to her bed for many weeks; had to use crutches for more than a year thereafter; was unable to perform her accustomed labor except a part of her household duties; and suffered pain in a degree usually attending such injuries, an award of §2,750 was not excessive and should not be disturbed.
    Appeal from a judgment of tbe circuit court for Clark county: James O’Neill, Circuit Judge.
    
      Affirmed.
    
    This is an action to recover damages for personal injuries received by tbe plaintiff on Saturday, February 5, 1910, by slipping and falling upon an alleged defective sidewalk on one of tbe streets of tbe defendant city.
    Plaintiff was injured on tbe sidewalk on tbe east side of Hewitt street, in front of tbe “old Taplin foundry.” Tbe street in front of tbe foundry building bad been filled two or three feet and tbe filling slanted off under tbe building to tbe natural level of tbe ground. Tbe building rested on posts and was close to tbe edge of tbe walk, wbicb was five feet four incb.es wide and laid on top of tbe filling. Tbe alleged insufficiency and want of repair of tbe walk was tbat tbe walk was not level in its width, tbat tbe outer edge of tbe walk was ten inches or a foot higher than tbe inner edge, and tbat a ridge of snow and ice bad accumulated on tbe outer edge of tbe walk.
    About 4 o’clock in tbe afternoon of tbe day of tbe accident tbe plaintiff passed over this walk on her way to town. In passing by tbe place of accident she went close to tbe foundry building, on tbe inner edge of tbe walk, where, it is admitted, there was a clear path about a foot in width. On her return, about 7 o’clock in tbe evening, she met some one at this place and stepped toward tbe outer edge of tbe walk. Tbe plaintiff testified tbat it was dark and tbat she was expecting her daughter to come to meet her and tbat she was looking closely at the passer-by to ascertain whether or not it was her daughter ; tbat she slipped and fell and sustained a fracture of tbe bones of tbe hip. She was confined to her bed for two months, was unable to work for months thereafter; it was necessary for her to use crutches for fifteen or sixteen months, and she could do but little up to tbe time of trial. Tbe injury resulted in a permanent shortening of tbe plaintiff’s leg of almost an inch.
    There was evidence in behalf of tbe plaintiff tbat during tbe previous summer tbe walk at tbe place of accident was not level, tbat tbe outer edge was about a foot higher than tbe inner edge, tbat this condition existed up to tbe time of tbe accident, tbat tbe walk was not cleaned of snow and ice during tbe winter, and tbat tbe ridge of ice, variously estimated as from six inches to a foot in thickness, bad accumulated at tbe outer edge of tbe walk and existed during tbe winter, and specifically for tbe previous month.
    In behalf of tbe defendant city there was evidence tbat tbe walk bad been repaired and made level during tbe preceding October, that on tbe Monday following tbe accident tbe walk was practically clear of snow and ice and that there was no ridge of snow and ice on the outer edge, and that measurements and a photograph taken on February 12, 1910, showed the walk to be level and that there was no ridge of ice. • There was evidence also by a witness for the defendant owner of the foundry property that he had cleaned the walk of snow during the winter.
    In plaintiff’s behalf there was evidence that on the Monday morning following the accident there was fresh sawdust on the walk and about the place of accident, that some blocking under the walk appeared freshly sawed, and that burned matches about the place indicated that the walk had been repaired during the night, and that the snow which had been cleaned from the walk appeared to have been lately removed and thrown off the walk.
    The court dismissed the action as to the owner of the foundry property.
    The jury by a special verdict found that the outer edge of the walk at the time of accident was six inches higher than the inner edge; that a slippery ridge of ice and snow three inches thick had existed on the sidewalk continuously for three weeks preceding the accident; that the sidewalk at the place of injury for three feet from the inner edge was not sufficiently cleared of snow and ice to render it reasonably safe for public travel; that the insufficiency and want of repair of the sidewalk had existed so long that in the exercise of ordinary care the defendant city should have discovered and have repaired it' before the injury; that the insufficiency and want of repair were the proximate cause of the injury; that the plaintiff was not guilty of contributory negligence; and that $2,700 would compensate the plaintiff for her injuries.
    This is an appeal from the judgment on the verdict.
    
      George L. J deques, for the appellant.
    For the respondent there was a brief by J. B. & O. B. Stur-devant, and oral argument by G. B. Slurdevant.
    
   Siebeceeb, J.

The defendant contends that tbe court erred in denying its request to award judgment dismissing tbe plaintiff’s complaint, because tbe evidence does not sustain tbe jury’s finding to tbe effect that tbe sidewalk was insufficient and in want of repair at tbe time of accident from a downward incline of tbe boards from tbe outer to tbe inner edge thereof and that there was on tbe walk, near tbe outer edge, a ridge of ice and snow three inches thick which bad existed for tbe three weeks immediately preceding tbe happening of plaintiff’s injuries. An examination of tbe record discloses that eight witnesses testified directly, in effect, that they repeatedly observed these defects in tbe walk for three months before tbe day of accident and for tbe two following days. As to tbe particularity of their observation, several of them testify to having specifically and repeatedly taken notice of tbe uneven condition of tbe walk while passing over it before tbe accident, and several of them testify to going to the place of accident early in tbe morning on tbe day following tbe evening when tbe accident happened and to tbe particularity of tbe inspection they then made, and they state that they found these defects of tbe slant of tbe boards in tbe walk and tbe presence of tbe ridge of ice and snow on tbe boards near tbe outer edge thereof, as claimed by tbe plaintiff. The direct evidence of tbe numerous witnesses who testify to tbe contrary is not of a nature and of such weight as to raise a question of law upon these issues. This conflict in tbe evidence presented questions involving tbe credibility of witnesses and tbe weight of evidence, and hence were peculiarly for solution by tbe jury. Tbe trial court properly submitted such issues to them, and ruled correctly in refusing to disturb their findings as to these issues after verdict. Tbe evidence is in its nature of tbe usual character and is so clearly sufficient to warrant the jury’s conclusion that it is not deemed necessary to repeat it here.

It is contended that tbe court erred in dismissing the action as to tbe defendant Taplin, the owner of the property on which the walk rested. There is no evidence tending to show that he is primarily liable on account of the defects in the walk, and hence the court properly dismissed the action as to him.

The defendant urges that the evidence shows that plaintiff was guilty of contributory negligence as matter of law. This claim is made on the ground that it is without dispute that she had knowledge of the condition of the walk and that she carelessly undertook to use it when she knew the danger of using this walk and also that the walk on the opposite side of the street was in a safe condition for travel and available to her. It appears that the walk was extensively traveled by the public and for a considerable period of time was so used while it was in the same condition as at the time of accident; that a portion of it, sufficiently wide for pedestrians to use, was clear of snow and ice; and that plaintiff was using it in the accustomed way when she met another traveler, necessarily stepped aside, and was thus brought onto the icy portion. We discover nothing in the facts and circumstances of her conduct which conclusively shows her to have been negligent. Contributory negligence is a defense which must be affirmatively shown. Sweetman v. Green Bay, 147 Wis. 586, 132 N. W. 1111. The finding of the jury on this issue must stand. Nichols v. Jung S. Co. 135 Wis. 129, 115 N. W. 334; Zoellner v. Fond du Lac, 147 Wis. 300, 133 N. W. 35.

It is urged that the court’s instructions were misleading, confusing, and incorrect. We have examined the charge and find it clear and definite, that it covers the issues fully, and states the rules of law applicable to the case correctly. There was no prejudicial error committed by the court in permitting the jury to táke the written charge into the room where they deliberated upon their verdict. Wood v. Aldrich, 25 Wis. 695; Loew v. State, 60 Wis. 559, 19 N. W. 437.

The exception to the refusal of the court to submit in the special verdict a requested question, on the point whether or not anything diverted plaintiff’s attention at the time she fell, is not well taken, since the inquiry was necessarily embraced in the question submitted on the issue of plaintiff’s contributory negligence. It is presumed that the jury considered this subject and found nothing in her action at this precise time inconsistent with their finding that she was not guilty of contributory negligence.

Nor did the court err in receiving the evidence of the witness Southard over defendant’s objection. He was a competent witness on the matters testified to by him and they were relevant and material to the issues.

The jury awarded the plaintiff the sum of $2,760 as compensatory damages. The evidence tended to show that plaintiff suffered a partial dislocation of her hip joint, a fracture of the neck of the femur, and a shortening of the leg of from three quarters of an inch to an inch. She was confined to her bed for many weeks; had to use crutches for over a year thereafter; was unable to do her accustomed labor, except a part of her household duties; and suffered pain in a degree usually attending such injuries. We cannot disturb the amount of the damages as excessive.

The record is free from error affecting any substantial right of the defendant.

By the Court. — Judgment affirmed.  