29 Wis. 21 (Wis. 1871), Sutton v. Town of Wauwatosa

Citation:29 Wis. 21
Opinion Judge:LUTHER S. DIXON, C. J.
Attorney:Jenkins & Elliott, for appellant, C. K. Martin & Palmer, Hooker and Pitkin, for respondent,
Court:Supreme Court of Wisconsin

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29 Wis. 21 (Wis. 1871)




Supreme Court of Wisconsin

June, 1871

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APPEAL from County Court for Milwaukee County.

Action against a town to recover damages for injuries to plaintiff's cattle, caused by the breaking down of a defective bridge which they were crossing.

The plaintiff started from Columbus on a Friday morning with a drove of about fifty cattle, intending to take them to Milwaukee, and sell them. Stopping at Hartland over Saturday night, he resumed his journey on Sunday morning, and at about four o'clock, P. M., reached a public bridge of about seventy-two feet span, over the Menomonee river, in the town of Wauwatosa. The cattle were driven upon the bridge, and when the greater part of them were near the middle of the span the stringers broke, some twelve feet from the abutments at each end, and precipitated the structure, with the cattle upon it, into the river, causing the death of some, severely injuring others and rendering the remainder, for a time, unsalable.

The complaint alleges, that the injury was caused by the dangerous, unsafe and rotten condition of the bridge, and the neglect of the defendant to keep it in proper repair.

The answer denies the negligence charged to the defendant, and alleges that the cattle were driven upon the bridge in so careless and negligent a manner as to cause it to break; and, also, that they were so driven upon the bridge on Sunday.

After hearing the evidence on the part of the plaintiff, the court granted a nonsuit, on the ground that the plaintiff, being in the act of violating the statute, prohibiting the doing of secular business on Sunday, when the injury occurred, could not recover therefor. The plaintiff appealed.

Judgment reversed and awarded.

Jenkins & Elliott, for appellant, as to the liability of the town, cited Ward v. Jefferson, 24 Wis. 342. To the point that the plaintiff's violation of the Sunday law, did not bar his recovery in the action they cited. Bryant v. Biddeford, 39 Me. 193; Morton v. Gloster, 46 id. 520; Binge v. Gardiner, 19 Conn. 507; Phalen v. Clark, id., 421; Adams v. Gay, 19 Vt. 358; Sargeant v. Butts, 21 id. 99; Banks v. Werts, 13 Ind. 205; Harrison v. Marshall, 4 E. D. Smith, 271; Nodine v. Doherty, 46 Barb. 59; Davies v. Mann, 10 Mees. & Wels., 546; Daley v. N. & W. R. R. Co., 26 Conn. 591; Kidder v. Dunstable, 11 Gray 342; Brown v. Lynn, 31 Pa. St., 510; Powhattan, etc., Co., v. Appomattox R. R. Co., 24 How. (U.S.), 247; Flagg v. Millbury, 4 Cush. 243, and other cases which are also cited in the opinion. To the point that the plaintiff, if not wholly free from fault, was so much less culpable than the defendant as to incline the balance in his favor, they cited Peoria Bridge Association v. Loomis, 20 Ill. 235; Galena Railroad v. Jacobs, id., 478; Walker v. Westfield, 39 Vt. 246; Humphreys v. Armstrong Co., 56 Pa. St., 204; Colegrove v. N. York & Harlem R. R. Co., 6 Duer 382; Haley v. Earle, 30 N. Y., 208; Dreher v. Fitchburg, 22 Wis. 675.

C. K. Martin & Palmer, Hooker and Pitkin, for respondent, as to the town's liability for negligence, cited City of Providence v. Clapp, 17 How. 161; Gregory v. Adams, 14 Gray 242; Fitz v. Boston, 4 Cush. 365; Shearman & Redfield on Negligence, secs. 369-382, and cases cited; and as to contributory negligence, Achtenhagan v. Watertown, 18 Wis. 331; Hunter v. Mil. & Chi. R. R. Co., 11 Wis. 160; Shearman & Redfield, Negligence, sec. 412.

As to plaintiff's violation of sec. 5, ch. 183, R. S., and its effect upon his right to recover, they cited AEtna Ins. Co. v. Harvey, 11 Wis. 394; Bosworth v. Swansey, 10 Met. 363; Lyon v. Strong, 6 Vt. 219; Commonwealth v. Knox, 6 Mass. 76; Jones v. Andover, 10 Allen 18; Johnston v. The Commonwealth, 22 Pa. St., 102; Bryant v. Biddeford, 39 Me. 193.


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It is very clear that the plaintiff, in driving his cattle along the road and over the bridge, to a market, on Sunday, was at the time of the accident in the act of violating the provisions of the statute of this state, which prohibits, under a penalty not exceeding two dollars for each offense, the doing of any manner of labor, business or work on that day, except only works of necessity or charity, R. S., c. 183, § 5. It was upon this ground the non-suit was directed by the court below, and the point thus presented, that the unlawful act of the plaintiff was negligence, or a fault on his part contributing to

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the injury, and which will preclude a recovery against the town, is not a new one; nor is the law, as the court below held it to be, without some adjudications directly in its favor, and those by a judicial tribunal as eminent and much respected for its learning and ability as any in this country. Bosworth v. Swansey, 10 Met. 363, Jones v. Andover, 10 Allen 18. A similar, if not the very same principle has been maintained in other decisions of the same tribunal. Gregg v. Wyman, 4 Cush. 322, May v. Foster, 1 Allen 408. But in others still, as we shall hereafter have occasion to observe, the same learned court has, as it appears to us, held to a different and contradictory rule in a class of cases which it would seem ought obviously to be governed by the same principle. The two first above cases were in all material respects like the present, and it was held there could be no recovery against the towns. In the first, the opinion, delivered by Chief Justice Shaw, and which is very short, commences with a statement of the proposition, repeatedly decided by that court, "that to maintain the action it must appear that the accident was occasioned exclusively by the defect of the highway; to establish which, it must appear that the plaintiff himself is free from all just imputation of negligence or fault." The authorities to this proposition are cited, and the statute against the pursuit of secular business and travel on the Lord's day then referred to, and the opinion proceeds: "The act of...

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