Mulcairns v. City of Janesville

• Citation: 29 N.W. 565,67 Wis. 24
• Parties: MULCAIRNS, ADM'X, v. CITY OF JANESVILLE.
• Decision Date: 12 October 1886
• Court: United States State Supreme Court of Wisconsin

67 Wis. 24

29 N.W. 565

MULCAIRNS, ADM'X,

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from circuit court, Rock county.Hyzer & Clark and Carpenter & McGowan, for plaintiff and respondent.

Charles E. Pierce and William Smith, for defendant and appellant.

ORTON, J.

The complaint substantially charges that the city, being authorized so to do, about the ninth day of August, 1884, entered upon the construction of a cistern, for the use of the fire department of said city, for protection against fire; that the city was authorized and did employ men in the construction of the same, and that about the sixteenth day of said month said city had made an excavation for said cistern, and erected within the same a wall of stone masonry, along the sides of the same, resting upon the bottom of said excavation, about 40 feet long, 10 feet high, 20 inches in thickness, and about 12 feet wide; that it was so constructed by the city, in such a careless and negligent manner, and negligently allowed to so remain, to the knowledge of the city; that on the day last aforesaid a portion of it fell upon Thomas Mulcairns, the husband of said plaintiff, who was employed by said city at that time in shoveling earth in the bottom of said cistern, in accordance with such employment, near said portion of the wall, having no knowledge of its unsafe condition, and using due care and caution, and caused his death. He left the plaintiff as his widow, and seven minor children dependent upon her for support. The answer admits the appointment of the plaintiff as administratrix, the incorporation of the city, that it was so engaged in the construction of a cistern, and that part of the wall thereof fell inward, and that Thomas Mulcairns was injured thereby, and died in consequence thereof; but denies all other allegations, and alleges that the cistern was being built by the city with all the care and caution possible to be used; and that the city employed workmen known to be skillful and careful, and used good material; and employed one James Shearer to superintend and manage the construction of the cistern, and that he was suitable to do so; and that said cistern was constructed in a skillful manner, without any negligence on the part of the city; and that the falling of said wall was caused or contributed to by the want of ordinary care of the deceased; and that the deceased entered upon his work with full knowledge of the dangerous condition of said wall.

The complaint most clearly states a cause of action against the city, and the first exception, which was to overruling a demurrer ore tenus to the complaint, was not error. The answer admits that the wall was built by the city, through the agency and under the superintendence of James Shearer, employed for that purpose by the city, and that when it was built it fell upon and killed the deceased.

1. The point made by the learned counsel of the appellant, that the city is not liable because it was in the performance of a public duty in which the city, as a municipal corporation, had no pecuniary interest, and the injury was occasioned by the act or omission of its officers or agents, may as well be disposed of here, because it arises as well upon the pleadings. James Shearer was not one of the public agents or officers of the city, but specially employed to superintend this particular work for the city. Such is the effect of the answer.

The case cited, and the first one on the question in this state, of Hayes v. City of Oshkosh, 33 Wis. 314, goes upon the doctrine generally recognized that when the agents, acting for the city, are not in the employment of the city, but act rather as public officers, such as the fire department, provided for by law, and the city does nothing more than appoint its officers, such persons perform duties fixed by law, and not special services contracted to be performed under employment of the city. The distinction between the two cases is very wide, and quite apparent. If the city could not be held liable in such a case, it never could in any; for it is a common case of special employment, for the performance of special services for and on behalf of the city. It was the legal duty of the city to construct cisterns for fire purposes, and it was engaged in the attempted performance of this duty, through its own private agencies, and not through the fire department or its officers, or other officers of the city, whose duty it was to perform such work.

The case of Spelman v. City of Portage, 41 Wis. 144, which is clearly in point, most clearly points out these distinctions.

The distinction is made, perhaps more clearly in the cases of Harper v. City of Milwaukee, 30 Wis. 365, and Little v. City of Madison, 49 Wis. 605, S. C. 6 N. W. Rep. 249. Both the principle and the distinction of cases are fully considered and clearly established in our own cases, so that we need not concern ourselves very much about cases in other states, for the above cases were decided upon a full examination of authorities elsewhere.

2. The point that the falling of this wall by its own weight, or by the pressure of gravel and earth behind it, placed there by the city, is prima facie evidence of the negligence of the city, is also as well raised upon complaint and answer. The unexplained falling of the wall is admitted in the answer. Such a presumption rests upon the clearest reason. Why did it fall? If it had been properly constructed, it is common observation, and within the common course of things, that it would not have fallen; therefore it was not properly constructed; and it was negligently constructed, because, by the exercise of ordinary care and prudence, such a wall would have been so constructed that it would not have fallen, but would have stood alone. The city, in such a case, may well be called upon to explain the reason why; for the knowledge of the manner of the construction of its work is peculiarly in the city and its agent, for they constructed the wall. The city must, by proof, repel and overcome this natural presumption.

The case of Kirst v. Railway Co., 46 Wis. 489, S. C. 1 N. W. Rep. 89, fully illustrates this rule of evidence, and the presumption is rested upon the fact that “the loss resulted from an act which, when due care is taken in its performance, does not ordinarily occur.” In this case the following language from the opinion in Scott v. London Dock Co., 3 Hurl. & C. 596, is quoted approvingly: “But when the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” In that case the plaintiff was injured by bags of sugar falling from a crane in which they were lowered to the ground from the warehouse of the defendant, in principle like this case. The instruction of the court, and the rulings to that effect, were clearly correct, both by reason and authority.

3. Another point can as well be disposed of on the pleadings. The answer admits the employment of James Shearer as the superintendent of this work. He employed workmen, it seems by the...