Naker v. Town of Trenton

215 N.W.2d 38, 62 Wis. 2d 654, 1974 Wisc. LEXIS 1571

• Court: Wisconsin Supreme Court
• Decided: March 5, 1974
• Docket: No. 298
• Status: Published

Opinions

Connor T. Hansen, J.

Illa N. Naker (hereinafter referred to as plaintiff) commenced this action as a result of injuries she allegedly sustained when her automobile failed to negotiate a turn at the T-intersection of State Trunk Highway 143 and South Oak Road in Washington county. The town of Trenton (hereinafter Trenton) demurred to the plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, and Trenton has appealed from that order.

South Oak Road is a public highway in Trenton which runs generally in a north-south direction and intersects and ends at State Trunk Highway 143, thereby comprising the T-intersection which was the scene of this accident. The complaint alleged that on August 14, 1969, at approximately 6:30 a. m., the plaintiff was driving in a southerly direction on South Oak Road in a reasonable and prudent manner; that she approached Highway 143 but failed to see any indication that South Oak Road ended at that point; that a stop sign was erected at the intersection but could not be properly observed because brush and trees were beginning to grow to a height of six feet and higher in the vicinity of the sign; that no warning signs existed at that time on South Oak Road to warn drivers that they were approaching a stop sign as they neared the intersecting Highway 143; that Trenton exercises jurisdiction over and has responsibility for the maintenance of streets within the town and the traffic signals on those streets.

The complaint further alleges that the plaintiff failed to observe the stop sign and as a result of this failure and the negligence of the defendants, she was unable to stop her vehicle and she continued on through the intersection, across Highway 143, and off the highway, sustaining various personal injuries.

While Trenton demurred to the complaint, Washington county answered and cross-complained against Trenton, and the town of Jackson apparently has not filed a pleading.

Trenton argues, on appeal, that “[t] he complaint fails to allege that the stop sign was erected by the Town of Trenton or that Trenton undertook to maintain it ... or that plaintiff, because of previous knowledge thereof, relied on the existence of any signs.” In overruling Trenton’s demurrer, the trial court relied upon the oft reiterated rule of this court that upon demurrer, pleadings are to be liberally construed.

“When a complaint is challenged by demurrer as to its sufficiency the general rule is that it should be liberally construed and upheld if it expressly or by reasonable inference states any cause of action.” Estate of Mayer (1965), 26 Wis. 2d 671, 675, 133 N. W. 2d 322.

In Firkus v. Rombalski (1964), 25 Wis. 2d 352, 358, 130 N. W. 2d 835, it was recognized, in a similar situation, as follows:

“. . . The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public which has the right to rely on its presence. . . .”

The rule of Firkus was recently reaffirmed in Chart v. Dvorak (1973), 57 Wis. 2d 92, 101, 203 N. W. 2d 673.

Trenton argues that Firkus is inapplicable because no warning sign was erected (thus no corresponding duty to maintain it was created) to advise drivers of the upcoming intersection, and that “[bjecause of the alleged invisibility of the stop sign, with no allegation that it once was visible, it should be treated as if none ever existed.” This argument fails. If brush was allowed to obscure the visibility of the sign, by reasonable inference one must conclude that it was at one time visible.

Trenton also argues that plaintiff’s excessive speed was the cause of the accident, but this is a fact to be determined at trial.

By the Court. — Order affirmed.