Little v. City of Madison

42 Wis. 643

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

Cole, J.

The sole question in this case relates to the sufficiency of the complaint. Omitting the formal parts, the complaint states, in substance, that on- or about the 15th day of July, 1876, the defendant, its agents, servants and employees, knowingly, negligently and carelessly allowed State street to become incumbered and obstructed by an exhibition of wild animals upon the same, to wit, two large cinnamon-colored bears; that said exhibition, so authorized, permitted and sanctioned by the defendant, its agents, etc., was calculated to obstruct and incumber the streets, to frighten teams, and to endanger the lives and property of persons traveling upon the street; that, on said 15th day of July, the city licensed one Lenox Carr to give a bear show — the defendant well knowing the dangerous character of the exhibition, and that the lives and property of the public would be jeopardized thereby; and that, while exhibiting under said license, the said Carr obstructed and incumbered the street with his wild animals, which animals frightened the team of the plaintiff traveling on the street, rendering it unmanageable, and caused the injury to the plaintiff’s wife, of which he complains.

These are the material allegations upon which the responsibility of the city must rest; and the question is: Do they not state an actionable injury? It seems to us that they do. They show that the agents of the city not only knowingly and carelessly allowed one of its principal streets to become obstructed by an exhibition of wild animals therein, which exhibition was calculated to produce injury to persons lawfully traveling along the street, but it is alleged that such exhibition was authorized and sanctioned by the city. Mow, if such were the facts, can there be a doubt as to the liability of the city for the injury, both on the ground that it failed to perform its legal duty of keeping the street free from all dangerous obstructions and nuisances, and upon the other ground, that the exhibition was authorized? ¥e should certainly hesitate to sanction the principle that a municipal corporation might knowingly and unnecessarily permit or authorize a nuisance or dangerous obstruction to be placed in one of its streets, without being answerable for damages occasioned thereby. Such a rule would be in conflict with all the adjudications of this court holding towns and cities liable for injuries sustained in consequence of defective streets and sidewalks.

It is said the complaint does not state that the city had due and sufficient notice of this exhibition. This is a mistake. "We have referred to the allegations of the complaint, which state that the agents of the city knowingly and carelessly allowed the street to be obstructed by the exhibition, and that such exhibition was authorized. It is to be hoped that these allegations of misconduct on the part of the officers and agents of the city will not be sustained by proof; but if they should be, it is difficult to perceive upon what principle the city would be exonerated from liability for their misfeasance or nonfeasance in respect to this exhibition.

By the Court. — The order of the circuit court sustaining the demurrer is reversed, and the cause remanded for further proceedings.