McChain v. City of Fond Du Lac

The question to decide on appeal is whether or not there is an issuable question of fact which should be tried by a jury. The appellant argues that there is an issue of fact (1) as to the depth of the depression and the surrounding circumstances, and (2) whether the depression was made at the time the sidewalk was laid or whether the depression was caused by the subsequent sinking of the metal box. The affidavit in support of the motion states the depression was ^4 inch deep and the box sank after being adjusted to the level of the sidewalk. The counteraffidavit on information and belief…