Brown v. Milwaukee Terminal Ry. Co.

Citation199 Wis. 575,224 N.W. 748
PartiesBROWN v. MILWAUKEE TERMINAL RY. CO.
Decision Date08 April 1929
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.

Action by Alex Brown against the Milwaukee Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.--[[[By Editorial Staff.]

The action started October 23, 1925, was to recover damages for injuries to plaintiff by being struck on June 9, 1925, by the falling of a dead tree which stood in front of defendant's premises. Trial June 6th, and from judgment for plaintiff on September 24, 1927, defendant appeals.

The amended complaint alleged the ownership by defendant of premises in the city of Milwaukee, said county, at 724 Clybourn street; that between the public sidewalk and the curbing fronting Clybourn street, a public highway, there had been standing a large tree which for some time prior to the accident was dead and decayed and because of such decay was dangerous to those using the public sidewalk; that because of such defective condition the tree suddenly, and without warning, fell, striking plaintiff, who was then lawfully on the sidewalk, causing serious and permanent injury.

The defendant answered, admitting ownership of the property; that a certain tree somewhat like the one described in the complaint stood in the public street between the sidewalk and the curb and in front of defendant's property prior to and at the time in question. It alleged the existence then and for a long time prior thereto of certain statutes, also specific ordinances of Milwaukee city, authorizing and investing public officials and employés of said city with full jurisdiction and control over the said tree.

The portion of the answer referring to the statutes and ordinances aforesaid was stricken out by order of the circuit court, August E. Braun presiding, prior to trial, and during the trial objections to all evidence in connection with the same were sustained. The special verdict submitted and answered was substantially as follows:

Was the tree dangerous to persons passing along the street in its then condition? Ans. Yes.

(2) Ought defendant in the exercise of ordinary care to have known of such dangerous condition prior to that time? Ans. Yes.

(3) Ought defendant in the exercise of ordinary care to have known of such dangerous condition for sufficient prior time to have enabled it to remove the tree? Ans. Yes.

(4) Was the failure to exercise ordinary care in that regard (Q.3) the proximate cause of plaintiff's injury? Ans. Yes.

(5) Damages assessed at $7,000.

After motions by the respective parties judgment was directed for plaintiff for the damages so found.

Owen and Stevens, JJ., dissenting.Hayes, Darnieder & Hayes, of Milwaukee (W. A. Hayes, of Milwaukee, of counsel), for appellant.

Arthur H. Bartelt, of San Antonio, Tex., and Samuel M. Soref, of Milwaukee, for respondent.

ESCHWEILER, J.

There is no substantial dispute concerning the facts material for consideration on this appeal, and further detailed statement of them is not necessary. The question presented is the narrow but troublesome one as to whether a person passing along a sidewalk on a public street in the city of Milwaukee, failing in no respect to exercise ordinary care for his own protection, injured by the blowing down of a dead tree standing between the sidewalk line and the curb of such public highway, may recover damages against an owner of the abutting premises who has had knowledge of the decayed and dangerous condition of such tree a sufficient length of time prior to the injury to have permitted of its removal.

[1] The provision of the city charter of Milwaukee and of which we can take judicial knowledge (O'Connor v. Fond du Lac, 101 Wis. 83, 85, 76 N. W. 1116;Durch v. Chippewa Co., 60 Wis. 227, 228, 19 N. W. 79), so far as here material for consideration (found as section 1a, c. 24), has long provided and still provides as follows: “Whenever any injury shall happen to persons or property in the said city of Milwaukee, by reason of any defect or incumbrance of any street, sidewalk, alley or public ground, or from any other cause for which the said city would be liable, and such defect, incumbrance, or other cause of such injury shall arise from, or be produced by the wrong, default or negligence of any person or corporation, such person or corporation so guilty of such wrong, default or negligence, shall be primarily liable for all damages for such injury, and the said city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person or corporation.”

Such provisions of the special charter of Milwaukee are the same in substance so far as here material, with the general statutory provision, section 81.17 Stats., concerning the liability for highway defects in any town, city, village or county.

The language of such charter and statute has been before this court in a number of prior decisions, and it was early held that such provisions were not intended to, and should not be, construed as indicating a legislative purpose to create any liability in and of itself or any new right of action, but merely to regulate the remedy for liabilities, if any, otherwise created or existing.

Cooper v. Waterloo, 88 Wis. 433, 60 N. W. 714, was an action for personal injuries caused by an alleged defective sidewalk in the defendant village, the village asserting that it was not personally liable and that the owner of the adjacent lot was primarily liable, if any one, and that such owner should be made a defendant. Plaintiff refused to amend or bring in such owner as defendant and appealed from an order striking the cause from the calendar for such failure. The court said, page 436 (60 N. W. 715): “It is to be remembered that at common law a town or village or an adjoining land owner was not liable for damages sustained by reason of a mere defective highway therein--much less by reason of a mere defective sidewalk therein. There is no liability therefore except such as has been created by statute.” The statute creating liability against a town, city or village is then referred to, and it is said, page 437 (60 N. W. 715): “This section does not undertake to create a liability against the adjoining lot owner, but merely to authorize an action against both the town, city, or village and the person whose wrong, default, or negligence caused the defect, incumbrance, or other cause of such injury.” And, further on: “However this may be, we are convinced that it gives no new right of action, but merely regulates the remedy for rights of action otherwise created.” The action was sent back for further proceedings against the village.

That case, page 436 (60 N. W. 715), also cited with approval the case of Woodward v. Boscobel, 84 Wis. 226, 54 N. W. 332, where the village sought to evade liability for injuries on a defective sidewalk because of the provisions of its charter and ordinances placing the cost of making and repairing the sidewalks on the owner of the adjoining real estate, but it was expressly held, page 231 (54 N. W. 332), that such provisions left not only the primary, but the entire, obligation upon the city to build the sidewalks and keep them in repair. It also held that such owner therefore could not be brought in on application of the defendant city as a party defendant, and that such owner was “under no legal obligation to repair the sidewalk.” Page 232 (54 N. W. 334).

The question so presented in those two cases and also here squarely presented, namely, whether the primary duty is placed by law upon the municipality or upon the lot owners, for the maintaining of the public highway in a safe condition for public travel, and held in those cases to be upon the municipality and not upon the lot owner, has been repeatedly so ruled in such cases as Fife v. Oshkosh, 89 Wis. 540, 543, 62 N. W. 541; also, Sommers v. Marshfield, 90 Wis. 59, 61, 62 N. W. 937;Toutloff v. Green Bay, 91 Wis. 490, 65 N. W. 168, where the distinction is pointed out at page 491 (65 N. W. 168) between a situation where the lot owner may be liable for active negligence in placing an obstruction or making an excavation in the street or sidewalk from that presented from a situation of a mere want of repair, and cites with approval page 492 (65 N. W. 168), the Cooper Case, supra. This later case further reiterates the same doctrine and declares it to be the policy of our law to place upon the municipality the responsibility to keep the streets and sidewalks in safe condition for travel and that full and certain protection is thereby assured to those injured by such neglect, and that the granting of a separate liability to such injured on the part of the property owner furnishes no additional protection and is an embarrassment rather than an advantage to him, page 494 (65 N. W. 168), and again, page 496 (65 N. W. 170), declares that: “There is no liability on the part of the lot owner to the passerby for injuries resulting from mere lack of repair of the adjacent sidewalk.”

In Selleck v. Tallman, 93 Wis. 246, 67 N. W. 36, where an action for injuries on a defective sidewalk was brought against the lot owners, it was again declared that the duty of the lot owners to repair or pay for the repairs is to the corporation, not to the traveler, and the action was held not maintainable. Page 248 (67 N. W. 36).

The question was again fully considered in Griswold v. Camp, 149 Wis. 399, 135 N. W. 754, an action against a lot owner for failure to comply with the ordinance of Milwaukee requiring him to keep icy sidewalks sprinkled with ashes, etc., and the action was held properly dismissed as against the property owner. Page 403 (135 N. W. 754).

The same view as to the nonliability at common law of the lot owner is held in other...

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