By the Goivrt,
Smith, J.
This was an action brought by the defendant in error against the plaintiff' in error, for so carelessly and negligently performing the work of grading Yliet street, as to occasion the injury to the plaintiff below, set forth in his declaration.
The questions presented for our consideration arise out of the instructions given by the court below to the jury.
It appears from the evidence that Yleit street had been laid out, dedicated to and used by the public for some years previous to the occurrence of the accident described in the plaintiff’s declaration ; had been travelled upon and some parts of it graded, and that teams had been passing and could pass without any difficulty from the place where the accident occurred, west, to the intersection of the street with the Lisbon Plank Boad. Some time previous to the accident, Yleit street was ordered, by the proper authorities of the city, to be graded. And at the place of the accident a deep grade had been cut, (about six feet or more), from the margin to the center of the street. [386]*386On tbe lOtb day of July, 1855, tbe plaintiff’s servant was driving bis carriage, in which were four or five persons, along said street from tbe west, coming upon tbe street at its j unction with tbe Lisbon Plank Road, and when arriving at tbe place in tbe street where tbe deep grading had been done, tbe carriage ran off tbe embankment, upset, and together with the horses was much broken and injured. It was in tbe night time, and tbe night was very dark and stormy. Neither tbe city authorities or its agents, or contractors, bad placed any lights about tbe embankment or tbe ditch, or bad erected any guard, fence, or any other signal by which persons traveling thereon might be warned of danger or difficulty in passing. These are tbe prominent facts established by the evidence, though it is not designed to state here the testimony in detail.
After tbe evidence was closed, the circuit judge proceeded to charge tbe jury, and among other things, gave tbe following instructions, to which the defendant below excepted, and here assigned as error, viz :
1. The court below charged tbe jury, and defined a public street, as any street “ that bad been laid out, set apart, and “ dedicated for tbe public use, whether tbe same bad been graded and opened for the public use or not; .and that tbe “ city is responsible to see that ■ all its public streets dedicated to the public, where the dedication has been accepted by the “ city, are so worked and so graded, and tbe duties of its offi- “ eers so performed, as to occasion no loss, injury or damage “ to individuals, by reason of their negligence, omission of “ duty or unskillfulness.”
It was contended by the counsel for tbe plaintiff in error, that this instruction is erroneous, for the reason that if tbe same were correct, the city would be bound to have every street on its plat worked, graded and suitable for public use.
We do not undertake to say, or even intimate, that under tbe old system of laying out plats and additions to tbe city of Milwaukee, the city became bound to construct, and render passable, all the streets so dedicated by the owner of the land to the public use. The city would have assumed no duties, [387]*387and be bound by no obligations, merely in consequence of tbe acts of other persons, however the public rights might have attached thereby. But when the city, by its public authorities accepts the dedication made by the owner, and assumes control of the street on behalf of the public, then its responsibilities attach. After the dedication by the owner, and acceptance by the public authorities, the rights of the public therein become fixed. If the street so dedicated and accepted is passable, the public have the right to use it for all such purposes, subject, it is true, to the rightful power of the city to alter, repair, or improve the same.
The proof in this case establishes the fact that long before the occurrence of the accident complained of, the city had frequently recognized Vleit street as a public street, and had exercised authority and control over it as such. Of this there can be no doubt. At the very time of the accident the street was being graded at the place of the occurrence, under the authority and by the order of the street commissioners of the proper ward of the city. In view of the facts proved in the case, it seems that the fair construction to be put upon this portion of the judge’s charge, is that after the city had accepted the dedication of a street, it became its duty to see that the working and grading thereof should be so performed that no person should be injured through the omissions of duty, or want of care in its operatives, in performing the work. We do not understand that the judge intended to charge the jury that it was the duty of the city to proceed immediately to work, grade, and put in passable condition, all streets which might be dedicated. But that in doing the work of grading, &c., it should be done with ordinary skill, and that ordinary care should be observed to prevent accidents. In this case we think he was right. After the dedication and acceptance of a street, all the people have a right to pass and repass over it. If it be in a passable condition in its natural state, the right of the citizen to use it as a street is unquestionable. At the same time the city have by their charter full power to alter the grade, to improve and modify it according to discretion. [388]*388But the city authorities, their agents or contractors, have not the right to lay traps or dig pits in the public streets. They are bound, as all other persons are, to use ordinary care and diligence in their operations.
Here was a public street long ago dedicated to, and accepted by the city functionaries. It had been traveled over, it had been ordered graded from time to time in different places, and at this place it had been passable and used as a public street. But the grade had been lowered some six or seven feet by the authority of the city, and the work of grading was going on under the orders of the street commissioners. To accomplish their purpose,, a deep cut of about six or seven feet, is made from the margin to a little past the centre of the street, with almost perpendicular sides or banks; and this work is so left without a light, fence, guard, sign or token, to warn or admonish the approaching traveler. That the city had a right to grade the street is undoubted; but it had not the right to absolve its officers and agents from ordinary care and diligence in the performance of the work, nor to escape the consequences of such carelessness on their part.
• Such we suppose to be the intent and purport of the first point in the charge excepted to by the plaintiff in error. But even if it would bear a broader construction, we do not see how it could have effected the rights of the plaintiff in error, in view of all the facts in the case. The question was not whether the city was bound to level and grade Vleit street so as to render it passable. The defendant in error was not injured in consequence of any natural impedements or inequalities in the street, but his claim for damages is founded upon the alleged fact that the natural surface of the street had been cut down, and a deep excavation made in the line of the street, into which his horses and carriage were plunged in the darkness of the night; there being no light or guard to warn him óf a change made in the surface.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Goivrt,
Smith, J.
This was an action brought by the defendant in error against the plaintiff' in error, for so carelessly and negligently performing the work of grading Yliet street, as to occasion the injury to the plaintiff below, set forth in his declaration.
The questions presented for our consideration arise out of the instructions given by the court below to the jury.
It appears from the evidence that Yleit street had been laid out, dedicated to and used by the public for some years previous to the occurrence of the accident described in the plaintiff’s declaration ; had been travelled upon and some parts of it graded, and that teams had been passing and could pass without any difficulty from the place where the accident occurred, west, to the intersection of the street with the Lisbon Plank Boad. Some time previous to the accident, Yleit street was ordered, by the proper authorities of the city, to be graded. And at the place of the accident a deep grade had been cut, (about six feet or more), from the margin to the center of the street. [386]*386On tbe lOtb day of July, 1855, tbe plaintiff’s servant was driving bis carriage, in which were four or five persons, along said street from tbe west, coming upon tbe street at its j unction with tbe Lisbon Plank Road, and when arriving at tbe place in tbe street where tbe deep grading had been done, tbe carriage ran off tbe embankment, upset, and together with the horses was much broken and injured. It was in tbe night time, and tbe night was very dark and stormy. Neither tbe city authorities or its agents, or contractors, bad placed any lights about tbe embankment or tbe ditch, or bad erected any guard, fence, or any other signal by which persons traveling thereon might be warned of danger or difficulty in passing. These are tbe prominent facts established by the evidence, though it is not designed to state here the testimony in detail.
After tbe evidence was closed, the circuit judge proceeded to charge tbe jury, and among other things, gave tbe following instructions, to which the defendant below excepted, and here assigned as error, viz :
1. The court below charged tbe jury, and defined a public street, as any street “ that bad been laid out, set apart, and “ dedicated for tbe public use, whether tbe same bad been graded and opened for the public use or not; .and that tbe “ city is responsible to see that ■ all its public streets dedicated to the public, where the dedication has been accepted by the “ city, are so worked and so graded, and tbe duties of its offi- “ eers so performed, as to occasion no loss, injury or damage “ to individuals, by reason of their negligence, omission of “ duty or unskillfulness.”
It was contended by the counsel for tbe plaintiff in error, that this instruction is erroneous, for the reason that if tbe same were correct, the city would be bound to have every street on its plat worked, graded and suitable for public use.
We do not undertake to say, or even intimate, that under tbe old system of laying out plats and additions to tbe city of Milwaukee, the city became bound to construct, and render passable, all the streets so dedicated by the owner of the land to the public use. The city would have assumed no duties, [387]*387and be bound by no obligations, merely in consequence of tbe acts of other persons, however the public rights might have attached thereby. But when the city, by its public authorities accepts the dedication made by the owner, and assumes control of the street on behalf of the public, then its responsibilities attach. After the dedication by the owner, and acceptance by the public authorities, the rights of the public therein become fixed. If the street so dedicated and accepted is passable, the public have the right to use it for all such purposes, subject, it is true, to the rightful power of the city to alter, repair, or improve the same.
The proof in this case establishes the fact that long before the occurrence of the accident complained of, the city had frequently recognized Vleit street as a public street, and had exercised authority and control over it as such. Of this there can be no doubt. At the very time of the accident the street was being graded at the place of the occurrence, under the authority and by the order of the street commissioners of the proper ward of the city. In view of the facts proved in the case, it seems that the fair construction to be put upon this portion of the judge’s charge, is that after the city had accepted the dedication of a street, it became its duty to see that the working and grading thereof should be so performed that no person should be injured through the omissions of duty, or want of care in its operatives, in performing the work. We do not understand that the judge intended to charge the jury that it was the duty of the city to proceed immediately to work, grade, and put in passable condition, all streets which might be dedicated. But that in doing the work of grading, &c., it should be done with ordinary skill, and that ordinary care should be observed to prevent accidents. In this case we think he was right. After the dedication and acceptance of a street, all the people have a right to pass and repass over it. If it be in a passable condition in its natural state, the right of the citizen to use it as a street is unquestionable. At the same time the city have by their charter full power to alter the grade, to improve and modify it according to discretion. [388]*388But the city authorities, their agents or contractors, have not the right to lay traps or dig pits in the public streets. They are bound, as all other persons are, to use ordinary care and diligence in their operations.
Here was a public street long ago dedicated to, and accepted by the city functionaries. It had been traveled over, it had been ordered graded from time to time in different places, and at this place it had been passable and used as a public street. But the grade had been lowered some six or seven feet by the authority of the city, and the work of grading was going on under the orders of the street commissioners. To accomplish their purpose,, a deep cut of about six or seven feet, is made from the margin to a little past the centre of the street, with almost perpendicular sides or banks; and this work is so left without a light, fence, guard, sign or token, to warn or admonish the approaching traveler. That the city had a right to grade the street is undoubted; but it had not the right to absolve its officers and agents from ordinary care and diligence in the performance of the work, nor to escape the consequences of such carelessness on their part.
• Such we suppose to be the intent and purport of the first point in the charge excepted to by the plaintiff in error. But even if it would bear a broader construction, we do not see how it could have effected the rights of the plaintiff in error, in view of all the facts in the case. The question was not whether the city was bound to level and grade Vleit street so as to render it passable. The defendant in error was not injured in consequence of any natural impedements or inequalities in the street, but his claim for damages is founded upon the alleged fact that the natural surface of the street had been cut down, and a deep excavation made in the line of the street, into which his horses and carriage were plunged in the darkness of the night; there being no light or guard to warn him óf a change made in the surface.
The counsel for the plaintiff also alleges for error, the following portion of the charge given by the court below:
“2d. The court further charged the jury, that the city [389]*389“ was responsible, and liable in damages, to any individual “ who suffers any special damage, caused by the streets being “left in an impassable condition, whereby the use of ordinary “ prudence and caution he could not foresee and avoid the “injury which occasioned the damage.”
This instruction was excepted to for the reason that it did not limit the application to such streets as had been graded or actually opened for public use.
The remarks made upon the former instruction will, for the most part, apply equally well to this. Under the proof and circumstances of the case, it would seem that this instruction had reference, not to streets in their natural condition, as they were dedicated, but to those actually in use, and which were “left” in an impassable condition, so that ordinary prudence and caution could not foresee or avoid the danger. The very term, “ left in an impassable condition,” implies that the street had been in a passable condition, but had been rendered impassable by some alteration, and so left without due precautions.
We are not advised that it has ever been the practice, or that it is the duty of the city authorities by formal order or publication, to proclaim the streets graded and open for public use. We have been referred to no ordinance, or by-law, or practice, of the kind. On the contrary, it has been the custom, it appears, to use the streets laid out and dedicated, so far as their use was practicable, and we do not understand the court below to have charged the jury, nor for the counsel for the defendant in error to claim here, that the city is necessarily liable for repairs, or damage, for the want thereof upon streets that have never been regularly surveyed and graded. But that when a street has been used, and the city, by its authorities or agents, changes or alters its surface so that it becomes thereby impassable, it is liable for damages unless proper precautionary measures are taken to warn the public of the danger. It was the act of the city that occasions this injury. That act may have been necessary to reduce the surface of the street to a proper grade. But it was the leaving of the street in that [390]*390impassable condition on the night in question without lights, fence or guard, or other token, “ so that ordinary prudence “and caution could not foresee or avoid the injury,” that constitutes the gist of the judge’s charge, and is in fact the gravamen of the complaint. It was not for neglecting to grade and render p assable Yleit street; it was not on account of any natural obstruction in the street, that the plaintiff below complained, but it was the act of the city itself in rendering the street impassable which was before passable, and leming it in such condition, without warning, whereby the injury accrued. That the city is liable for such omissions and neglect we have no doubt. While it possesses ample powers over the streets— to lay out, alter, grade, improve, and vacate — it can do none of these things in a wanton manner so as to hazzard the lives and property of ’ the citizens. The city may perhaps order Spring street bridge to be removed; but it must accomplish its work with ordinary care and diligence. It may excavate the streets, but if the excavation is left without proper guards, so that the traveler fall therein, it is liable for the damages incurred. 19 Pick., 405; 4 Shep., 187; 12 Vt. 188; 7 Pick., 337; 6 Id., 444; 7 Id., 188. The city can no more dig pits, or set traps in the street than can a private individual.
The liability thus imposed upon the city is not in any degree a hardship. It does not tend in the slighest degree to impede or retard any improvements which may be deemed advisable. It is an easy matter to erect near such excavations and pitfalls guards and barriers, and place lights when necessary, to protect and warn the traveler. ' The trouble and 'expense are trifling, while the objects to be secured — the lives and safety of the citizens — are invaluable. All these improvements may be done with safety to all; but if its agents and 'employees will conduct its operations in a manner so utterly reckless of human life and property, the city must respond in damages.
Another error assigned, by the counsel for the plaintiff 1 in error is the refusal of the circuit judge to give the following instruction as asked: “That if the plaintiff's negligence or “ want of ordinary care on his part, or on the part of his dri- [391]*391“ ver, by starting to come borne in a violent storm, tbe driver “ not being acquainted with tliat part of the city, by which he “ lost his way, thus led and contributed in any degree to this “ accident, then the plaintiff could not recover.”
Most unquestionably if the negligence of the plaintiff’s servant contributed to the accident he cannot, recover. But this instruction assumes that the driver’s starting to come home in a violent storm, he not being acquainted with that part of the city, constituted negligence and want of ordinary care. ¥e cannot so declare, and thinlc the court did right in refusing the instruction as asked. If he had requested the court to instruct the jury that if there was want of ordinary care on the part of the driver of the carriage, or if his negligence contributed to, or occasioned, the injury, the plaintiff could not recover, it would have been error to refuse it. But the court below could not, as a matter of course, charge the jury that the driver’s starting to come home in a violent storm, or, that his being a stranger to that part of the city, was want of ordinary care on his part. Besides, it is a matter of fact that the driver, with his carriage, was in the street when it plunged into the ditch. If the excavation had not been there in the street, the injury would not have occurred. And if the night was dark and stormy, so much the more imperative was the duty of the city functionaries to place suitable barriers and signals about the pit-fall which they had dug.
We do not intend to intimate that it is the duty of the city to immediately grade and render passable all the streets and public thoroughfares that may from time to time be dedicated to the public use as such within its limits. The city functionaries have a reasonable discretion in that behalf. But when a street, dedicated and accepted, is passable by nature, or has been rendered so by labor bestowed upon it, and the city functionaries in their discretion set about altering it, they must do their work with due regard to the public safety. They have the control of highways, and have a right to alter and improve them. But the public have also right to be assured that the streets and thoroughfares of the city shall not he excavated, [392]*392pit-falls dug therein, and dangerous obstructions interposed without due safeguards being provided against accidents like tlie one in question. The public have a right to look to the city authorities for protection in this respect, and if they fail in their duty the city must respond in damages. This works no harm to any one, but is designed to secure the just rights and protection of all.
We are of the opinion that there was no material error in the ruling of the court below which could in any manner affect the rights -of the plaintiff in error, and the judgment of the circuit court must therefore be affirmed with costs.