Brown v. Milwaukee Terminal Ry. Co.

• Decision Date: 05 November 1929
• Citation: 227 N.W. 385,199 Wis. 575
• Parties: BROWN v. MILWAUKEE TERMINAL RY. CO.
• Court: Wisconsin Supreme Court

199 Wis. 575

227 N.W. 385

BROWN

v.MILWAUKEE TERMINAL RY. CO.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

On reargument. Mandate in former opinion (224 N. W. 748) vacated, and judgment appealed from affirmed.--[By Editorial Staff.]

Eschweiler and Crownhart, 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.

STEVENS, J.

When the court rendered its former decision, the case was considered as one which presented the question whether the defendant was liable for negligence in failing to keep the street in front of its property in a safe condition for public travel. Basing its decision on the rule of the sidewalk cases, there cited, the court reached the conclusion that defendant was not guilty of any negligence that rendered it liable to the plaintiff. The cases on which the court relied in its former decision were based upon the provisions of statutes and ordinances which impose liability upon local governmental units for the failure to perform a governmental function.

A re-examination of the case satisfies the court that cases dealing with liability imposed by statute or ordinance do not aid in determining the rights of the parties in this action, because liability in this case is dependent upon the rules of the common law which impose liability for the creation or the maintenance of a nuisance.

[1][2] Liability for the creation or maintenance of a nuisance “extends to everything that endangers life or health, gives offense to the senses, violates the law of decency, or obstructs the reasonable and comfortable use of property.” 20 R. C. L. 380. “A nuisance may exist not only by reason of doing an act, but also by omitting to perform a duty.” Joyce, Nuisances, 2. “Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material.” Lamming v. Galusha, 135 N. Y. 239, 242, 31 N. E. 1024. See, also, Joyce, Nuisances, 80.

[3] In those cases where the nuisance is created by the defendant, no question of negligence or want of ordinary care is involved. In those cases, liability for nuisance “does not rest on the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care.” 20 R. C. L. 381. This rule finds illustration in the establishment of a tannery or a slaughterhouse in the midst of a residential area, where the mere act of using the plant creates a nuisance. “Where the damage is the necessary consequence of defendants' acts, or is incident to the business itself or to the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies.” Joyce, Nuisances, 28, 29. The basis for liability is the damage done by or danger inherent in the creation or maintenance of that which constitutes a nuisance.

[4] But there is a class of cases in which the acts or conduct of the defendant do not necessarily cause damage to others, in which the mere existence of danger does not create liability, unless the circumstances are such as to charge defendant with notice of the existence of the danger. The planting of shade trees in public streets, outside the limits of travel either upon the paved portion of the street or upon the sidewalk, does not ordinarily result in injury or damage to any who use the streets. Such trees, properly placed, do not constitute nuisances. But when such a tree through decay or because of any change in the structure of the tree or in its surroundings becomes a menace to the safety of those who travel the street, such tree may become a nuisance which will render the owner of the adjoining lot liable for injuries which may be caused to those who lawfully use the streets. In such cases where danger results, not from the planting of the tree, but through subsequent changes for which the defendant is not responsible, it is essential to liability that it be shown either that the defendant knew of the danger incident to the...