James v. City of Portage

• Citation: 5 N.W. 31,48 Wis. 677
• Parties: JAMES v. THE CITY OF PORTAGE
• Decision Date: 30 March 1880
• Court: Wisconsin Supreme Court

5 N.W. 31

48 Wis. 677

JAMES v. THE CITY OF PORTAGE

Supreme Court of Wisconsin

March 30, 1880

Argued March 10, 1880

APPEAL from the Circuit Court for Columbia County.

Defendant appealed from a judgment in plaintiff's favor. The case is stated in the opinion.

Affirmed.

For the appellant, there was a brief by E. S. Baker, its attorney with A. Scott Sloan, of counsel, and oral argument by Mr Sloan.

For the respondent, there was a brief by Harvey Briggs, his attorney with J. G. Flanders, of counsel, and oral argument by Mr. Flanders.

OPINION

DAVID TAYLOR, J.

The plaintiff brought his action to recover damages against the appellant for an injury sustained by him, which he alleges was caused by a defect in the sidewalk of one of the public streets of said city, which sidewalk, he also alleges, it was the duty of said city to keep in repair.

There is no question made as to the fact that the sidewalk was out of repair, nor is it seriously contended that the injury of which the plaintiff complains was not caused by that fact. The real question in the case is, whether the city is liable for an injury caused by the want of repair of a sidewalk in one of its public streets, when such sidewalk has neither been constructed nor ordered to be constructed by the city or its proper officers, and when no work has been done or ordered to be done by the city or its officers in the construction, maintenance or repair of such walk.

The evidence shows that the place where the accident occurred was within the limits of one of the streets designated upon the city plat as a public street; that it had been used as a public street of said city for several years before the time of the accident, for travelers on foot and with teams and carriages; that during all those years that part of the street along the east side thereof, and where the accident occurred, had been used as a footway or sidewalk for persons traveling on foot along said street; that portions of said footway or sidewalk in the vicinity of the place where the accident happened, had been planked by the owners of the adjacent lots as a sidewalk; and that in other places, and at the place where the accident happened, the walk had never been planked as a sidewalk, but the surface of the ground remained very nearly in its natural state. There was no proof tending to show that the portions of the sidewalk which had been planked by the adjacent lot-owners had been so planked by the order or direction of the city or its officers; and we think, for the purposes of this case, it must be assumed that such planking was done by the owners without any direction or order from the city or its authorities, and that it must also be assumed that the city never had done any work upon the sidewalk in the immediate vicinity of the place where the accident happened.

Under this state of the evidence, it is insisted by the learned counsel for the appellant that the city cannot be held responsible for any injury occurring by reason of any defect or want of repairs in such footway or sidewalk; that the mere fact that the travelers on foot in one of the small cities of the state had for years traveled along the side of one of its public streets, in the place where it is usual and customary for travelers on foot to travel when passing along such streets, does not impose any duty upon such city to keep such part of the street so traveled by footmen in repair. After a careful consideration of the case, we think the learned counsel is mistaken as to the extent of the duty imposed by the laws of this state upon the cities thereof to keep their streets in repair. It must be admitted that the charter of the city does not expressly charge the city with the duty of maintaining sidewalks along the sides of the public streets of such city. The charter, in fact, provides that the city shall not have authority to grade or gravel any street, or construct any sidewalks along its streets, without the consent of two-thirds of the adjacent lot-owners, when the expense thereof is to be charged to such lot-owners. Chapter 93, P. & L. Laws of 1858, subch. VI, § 1. But the charter provides for the collection of a poll tax for the purpose of keeping its streets in repair, and also allows the city to levy a tax for that purpose, in the same manner and to the same extent that towns may do. See section 7, subch. VII of said ch. 93, P. & L. Laws of 1858.

The duty of the city to keep its streets in repair, and the consequent liability to travelers injured by reason of the want of such repair, are imposed by the general laws of the state, and not by the city charter. Section 120, ch. 19, R S. 1858; Tay. Stats., p. 513, § 156. This court has repeatedly held that this section applies to all cities as well as towns situate in this state. Kittredge v. Milwaukee, 26 Wis. 46; Harper v. Milwaukee, 30 Wis. 365; Weisenberg v. Appleton, 26 Wis. 56; Johnson v. Milwaukee, 46 Wis. 568; Prideaux v. Mineral Point, 43 Wis. 513; Colby v. Beaver Dam, 34 Wis. 285. The revision of 1878 makes that certain by express statute, which this court had rendered certain by numerous decisions construing the former law. Section 1339, R. S. 1878. It...