Adams v. City of Oshkosh

• Decision Date: 28 February 1888
• Citation: 36 N.W. 614,71 Wis. 49
• Parties: ADAMS v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

71 Wis. 49

36 N.W. 614

ADAMS

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Winnebago county.

The appellant, the city of Oshkosh, had employed divers persons to grade and gravel the streets. About 6 o'clock of the day on which the injury complained of occurred, a pile of gravel was placed upon the street, where it remained during the night. About 9 o'clock of the same evening, a horse belonging to plaintiff, G. G. Adams, ran upon this pile of gravel, and was killed. Plaintiff recovered judgment in the court below. Defendant appeals.Wm. H. Casey, for appellant.

Finch & Barber, for respondent.

TAYLOR, J.

The respondent brought an action against the city of Oshkosh to recover for the value of a horse which was killed in the night-time by running upon a pile of gravel and stones alleged to have been placed in one of the principal streets of said city by the said city, and permitted to remain there without any lights or barriers to warn persons traveling said street of the danger. The evidence satisfactorily shows that the obstruction was placed in the street by an employe of the city, on the day the accident happened, and that such employe, with others, was at the time engaged in repairing said street. The only real question arising on this appeal is whether the city of Oshkosh is liable for an injury occurring to a citizen traveling such street, by reason of an obstruction placed in said street by an employe of said city while engaged in repairing the same, unless the person injured can show that previous to the injury one of the aldermen of the ward in which the obstruction was placed had actual notice of such obstruction. It is contended by the learned counsel for the appellant that, under the charter of the city of Oshkosh, no damages can be recovered of the city, caused by an obstruction placed in the street, even by an employe of the city engaged in repairing such street, unless actual notice of the obstruction be given to one of the proper ward aldermen, or it be shown that one of such aldermen had actual knowledge of the existence of the obstruction before the accident happened. This contention is based upon the following provision in the charter of said city, viz.: “The city shall not be liable to or for any damages arising or growing out of any sidewalks, streets, drains, sewers, gutters, or ditches, or bridges in said city, being in a defective or dangerous condition, or out of repair, unless it be shown that, previous to the happening of the same, one of the aldermen of the ward in which the same is located had knowledge thereof; and no knowledge of such condition of the same shall be presumed, unless the defect out of which the same occurred existed three weeks before such damages accrued: provided, however, that nothing herein contained shall be so construed as to mean that knowledge is to be presumed because such three weeks had elapsed.” There is no claim that either of the aldermen of the ward had actual notice of the obstruction in the street, nor that it had existed for three weeks; so that, if the statute applies to an obstruction placed in the street by an employe of the city while engaged in repairing said street, the plaintiff did not make out a case. After a careful consideration of the statute, we think it was not the intent of the legislature to cover a case of this kind. In the case at bar the aldermen of the ward, in discharging a duty imposed upon them by law, were in fact engaged in repairing the street in question, and one of their employes negligently permitted the obstruction to be placed in and remain in said street. We think, in a case of...