Klatt v. City of Milwaukee

10 N.W. 162, 53 Wis. 196, 1881 Wisc. LEXIS 227

• Court: Wisconsin Supreme Court
• Decided: October 18, 1881
• Status: Published

Opinion

Orton, J.

The accident which caused the injury complained of is alleged to have happened by reason of the city not keeping barriers and lights in the street where it occurred (which was then being paved and thereby rendered unsafe for travel), which would have prevented it. The duty of the city to protect the traveling public from injury liable to happen in consequence of street improvements of this character is the vital principle of this case; and, before applying it to the facts and findings, it is necessary to determine the nature of this duty of the city, and the extent and measure of the responsibility involved. When this duty is not directly and specifier-ally imposed by law, it arises by necessary implication from the primary duty, which is so imposed upon the city, to keep its streets, which have been opened to public use, all the time fit and safe for such use. The right and duty to make improvements of streets by grading, paving, etc., in order to make and keep them in such fit-and safe condition, do not constitute an exception to such primary duty, but are necessary to its best performance, and arise from it and are consistent with it and subsidiary to it, although for the time being and while such improvement is being made such streets are rendered less or wholly unfit or unsafe for such public use. The duty in question, to protect the public by suitable precautions against danger and damage while so improving the streets, arises from and is connected with the right and duty to improve, and both are included in the first or primary duty imposed by law to keep the streets in repair and all the time in a condition safe to the traveling public, as well during the progress of improvements as at all other times. This must be so, else there is no liability for neglect of the duty in question, at least in this state, where the liability and right of action exist by statute, or not at all. The duty to repair and to keep in repair is coupled with the duty to protect the public against accidents, while the streets are out of repair or while they are being repaired, and they must be kept in a safe condition, or the public must be protected from accident, in some proper way, while they are unsafe. This view is sanctioned by many eases in this court and elsewhere.

In the leading case of City of Milwaukee v. Davis, 6 Wis., 377, it is said: “The leaving of the street in that impassable condition on the night in question, without lights, fence or guard, or other token, . ■. . is in fact the gravamen of the complaint.

In Seward v. Town of Milford, 21 Wis., 485, an instruction .was approved, “ that if the town had not had time to repair the road, it should have put up and kept up proper guards at that place to notify and prevent travelers from going on the dangerous track.”

In Ward v. Town of Jefferson, 24 Wis., 342, the two duties are coupled together,, in the language: “And to have put the road in repair, or by other means to have guarded against and prevented the injury.”

In Hammond v. Town of Mukwa, 40 Wis., 35, the present chief justice said: “And we are clear that the town is primarily liable when it fails to keep such highway safe for public travel, or does not use proper precautions to warn travelers of the dangerous condition of the highway.”

It is said in Shearman & Redfield on Negligence, § 399, citing several authorities: “Pending the work of rebuilding if the public is put upon its guard, the town will be excused for the defective condition of the highway.”

These references are quite sufficient to show by authority, what is apparent in reason, that in the very nature of the duty' to keep highways in repair and safe for travel is included the duty to use proper precautions against accident while they are unsafe and out of repair, and that the two duties, if they may be nominally sepai’ated, are of the same nature and obligation, and liability for their non-performance rests upon the same degree of negligence. It follows, therefore, that if the city could not be held to a strict and absolute, but only to a reasonable, performance of the duty to keep its streets in repair and safe for travel, and in respect thereto only to the exercise of ordinary care and prudence, and would not be held liable for an injury occasioned by their being out of repair and unsafe, without actual or presumptive notice that they are in such condition, it should be held to no stricter performance of the duty to.protect the public by suitable precautions from injury while the streets are out of repair and unsafe for travel, and in respect thereto should be held to the exercise of the same degree of care and prudence. It is too well established to require the citation of authorities, that if a street should, suddenly and without warning to or fault of the city, come by any means into a condition dangerous to travel, the city would not be liable for damages occasioned thereby, without actual notice, or notice implied or presumed by lapse of time, of its condition, and until after a reasonable time for repairing, it. By the same rule, when a street being improved is made safe, so far as the public is concerned, by barriers or other proper precautions, if, suddenly and without warning to or fault of the city, it becomes unsafe by the removal of such barriers or other precautions, by any means, the city should have the same notice.

In Shearman & Redfield, § 376, it is said: “ During the progress of the work of altering or repairing a highway, ordinary care must be used to prevent injuries to passengers therefrom.” In Kœster v. Oity of Ottumwa, 34 Iowa, 41, an excavation in the sidewalk, into which the plaintiff fell, had been made and guarded in a certain manner by a builder; and on the trial a witness was asked, substantially, whether this excavation was not guarded in the customary manner among builders. This evidence was held improper, and the supreme court, in affirming the ruling, say: “The point in issue was as to whether the defendant had been negligent in fact. If the custom in that city had been to do more in the way of barricading than ordina/ry care and prudence required, the defendants, nevertheless, would not have been liable if it had done only what ordinary care and prudence required. It must exercise ordinary care. Custom will hot require it to do more, nor excuse it for doing less.”

"We think that we have sufficiently shown that the liability of the city for not properly guarding a street made dangerous to travelers by works of improvement, so as to prevent accidents thereon, as an implied liability arising from its liability imposed by the statute for not keeping it in a condition of repair and safety, is not an absolute liability, but depending upon the want of ordinary care and prudence. Put in this case it is claimed by the learned counsel of the respondent, ■ that the charter (section 11, sub-ch. Y of ch. 184, Laws of • 1874), requiring the city to have inserted in contracts for street improvements a stipulation, in substance, that the contractor “ shall put up and maintain such barriers and lights as will effectually prevent the happening of any accident,” imposes upon the city the absolute duty of having such barriers and lights put up and maintained, which must be strictly performed. Whether this is so or not it is unnecessary in this case to decide; for one of the findings of the jury is, that a barrier of a certain hind had been put up across the dangerous street on Saturday night before the accident occurred, and there is no finding that it was insufficient to have prevented the accident if it had remained until the time of its occurrence. When this duty has been performed and a sufficient barrier has been put up, as required by law, the absolute liability, if there is any in such a case, ceases, and the eity is only bound to use common care and diligence in maintaining it. If such sufficient barrier is after-wards removed or thrown down by a stranger, or from any cause, without the knowledge or fault of the city authorities, and they have no actual, notice that it is so removed or thi’own down, and a sufficient time has not elapsed, under the circumstances, to raise a presumption that they had notice thereof before the accident, the city is not liable.

In Seward v. Town of Milford, supra, the following instruction to the jury was approved by this court: “If the town put up proper guards to notify and keep travelers from going on the dangerous track, and kept them up until the night of the accident, and such guards were removed by some person in the dark, it is not liable.” The case of Doherty v. Inhabitants of Waltham, 4 Gray, 596, is closely analogous to this case in its facts relating to the putting up and the removal of the barriers. The workmen, before they left the work at sundown, put up barriers around the well which they were digging in the street. Between 9 and 10 o’clock the same night the obstruction had been removed, either by accident or design, but at what time there was no evidence, and the plaintiff fell into the well and was injured. The jury were instructed that the town would not be liable “unless it had reasonable notice of the removal of the barriers, and that the road had by such removal become again dangerous,” and this instruction was approved. In Aylesworth v. C., R. I. & P. R. R. Co., 30 Iowa, 459, the court said: “It is the duty of railroad companies, under our statute, to fence their roads. It is also their duty to maintain and keep up the fences after they are made. But before the liability would attach in the latter case, in the absence of wrong on their part, they must have knowledge that the fence is out of repair and a reasonable time thereafter to put it in repair.” In Daniels v. Potter, 4 Car. & P., 262, it is held that a tradesman who has a cellar opening upon- the public street, is bound, when he uses it, to take reasonable care that the flap of it is so placed and secured as that, under ordinary circumstances, it shall not fall down; but if the tradesman has so placed and secured it, and a wrong-doer throws it over, the tradesman will not be liable in damages for any injury occasioned by it. Authorities to the same effect might be multiplied indefinitely, but a principle so clearly founded in reason needs no further support.

It appears by the evidence that this accident occurred about 9 or 10 o’clock in the evening, and the jury found that the barrier was up at 4 o’clock that afternoon, and they found further that it was not removed by the contractor or any one in his employ, and there was no finding or proof when the barrier was removed or by whom. The jury found that neither the contractor nor the city, nor any of its officers, had notice before the accident that the barrier had been removed. If we were to construe this finding that the city had no actual or implied or presumptive notice of the removal, then by the above principle apd authorities'the plaintiff, was'not entitled' to recover. But we do not feel at liberty so to construe it, for the jury probably meant actual notice, as the matter of implied notice from lapse of time or from circumstances was not alluded to in the charge of the court as a principle that had any application to the case, and there was no finding on the question. The learned counsel of the respondent now insists that this court should hold that from the mere lapse of time, of about five hours, from 4 o’clock to the time of the accident, the city, through its officers or agents, is presumed, as a question of law, to have had notice. This might be a question of law for the court, if the jury had found all of the facts and circumstances from which a clear legal conclusion could be drawn, of notice or want of notice. But here there is an entire absence of facts pertinent to such an inquiry. We do not even know when the barrier was removed, and we know nothing of the relative situation of the street or the part of the street in which the barrier had been placed; whether near to or distant from the centers of trade or business; whether much or little used for travel; how near to it were the residences or places of business of the officers or agents of the city, or how near to it they were likely to pass in going from place to place; or any other material fact to be considered in forming such a legal conclusion. This presumption of notice must have some foundation of fact, and the facts must be such as to clearly raise the presumption, or neither the court nor jury would be justified in assuming that the city had such notice. The special findings of the jury in these respects are defective, and they are also defective in not finding that the barriers that were put up were reasonably sufficient to prevent such an accident. Eor these reasons the judgment must be reversed and a new trial had.

This opinion has been extended perhaps to a needless length, but the main question is an important one, and likely to arise in many kindred cases.

By the Oowrt.— The judgment of the county court is reversed, and a new trial ordered.