Cahill v. Layton

• Decision Date: 31 May 1883
• Citation: 16 N.W. 1,57 Wis. 600
• Parties: CAHILL, ADM'R, ETC., v. LAYTON AND ANOTHER..
• Court: Wisconsin Supreme Court

57 Wis. 600

16 N.W. 1

CAHILL, ADM'R, ETC.,

v.LAYTON AND ANOTHER.^a1.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from circuit court, Milwaukee county.

ORTON, J., dissents.

This complaint alleges, in effect, the death of Shea, the appointment of the the plaintiff as his administrator, and that the defendants, as copartners, had for many years last past, and were still, using and occupying lot 6, in the south half of block 87, in the Fourth ward of the city of Milwaukee, and the brick buildings and structures thereon, and then alleged the following, to-wit:

That said block lies on the east side of West Water street, between Fowler street on the south and Clybourn street on the north, (all of which said streets are public highways in said city,) and extends from said West Water street to the edge or dock-line of Milwaukee river, and has a public alley, which is also a public highway, extending through the middle thereof from the said West Water street to the said dock-line of said river; and that for many years last past all the proprietors and occupants of lots and parts of lots in the south half of said block eighty-seven, (87,) including the said defendants, have maintained a roadway extending along the dock-line of said river from the east end of said Fowler street to the east end of said alley, thus at all times affording to all said occupants and proprietors, and their agents and servants, and to the public in general, access for teams and wagons to the rear ends of all the various buildings situated on said half block, and also a passage along said dock-line of said river to said West Water street, either by way of said alley or by way of said Fowler street, as the case might be; and that for many years last past, and particularly on the said sixth day of October, 1880, the said roadway last above mentioned was, and has been, constantly used as a drive-way for teams and vehicles of all kinds, and more especially for teams employed in and about the business of occupants of said half block in which it is located as aforesaid; and that for many years last past, and particularly on said sixth day of October, 1880, the said defendants well knew that said roadway was so constantly used for the passage of teams and vehicles as aforesaid by any and all persons having any occasion therefor.

That on said sixth day of October, 1880, and for a long time prior thereto, the said defendants kept and maintained a large platform, made of timbers, joists, and planks, over and across the said roadway above mentioned, extending from the rear or east end of the brick building occupied by them as aforesaid, to the dock-line of said river, so as to completely cover and span the said roadway, at an elevation above said roadway such that a team of horses and a wagon of ordinary height could be driven under it along and upon said roadway without hindrance, but not sufficiently elevated to admit of the passage of a teamster or driver sitting upon such wagon, and by reason of the premises said platform then and there was, and for a long time had been, dangerous to persons driving teams upon and along said roadway, of which said dangerous position and condition of said platform the said defendants were well aware on said sixth day of October, 1880, and for a long time prior thereto.

That on said sixth day of October, 1880, the said John Shea, deceased, was employed by Messrs. Plankinton & Armour, occupants of premises in said half block adjoining the said premises occupied by said defendants, to drive a team in hauling pork to or from the rear end of the store of said Plankinton & Armour in said half block; that late in the evening of said last-mentioned day, to-wit, after it had become dark, the said John Shea, while so in the employ of Plankinton & Armour, as aforesaid, and while the said defendants so kept and maintained the said platform over and across the said roadway as aforesaid was lawfully driving a team of horses, drawing a common freight wagon loaded with pork in barrels and other goods, upon and along said roadway going northward, and unaware of said nuisance and dangerous obstruction of the road, intending to drive to said West Water street by way of said alley, he, the said John Shea, then and there riding on the wagon and guiding his horses; that while he, the said John Shea, was then and there so driving said team of horses and loaded wagon as aforesaid, with due care and diligence upon and along said roadway, he was by motion of said wagon suddenly and without any previous warning or notice, with great force and violence, driven and forced against the south edge of said overhanging platform, so that said platform collided with his head and breast and threw him backward upon the barrels in said wagon, whereby he was so greatly hurt, bruised, and crushed, that in consequence thereof he died within an hour after the said collision.

That the said defendants, at the time of said collision and accident, had omitted and neglected to keep or have, at or about said platform, any light or other signal to indicate the existence of said platform, and to warn persons lawfully passing over said roadway with teams and wagons of any danger of such collision, and that said collision, and the death of said John Shea, was caused wholly by the fault and neglect of the defendants in keeping and maintainingsaid platform over said roadway in the position and in the manner aforesaid, and without signal, barrier, or warning of any kind, they then and there well knowing the danger to which persons driving teams along said roadway were thereby exposed; that at the time of his death the said John Shea was a strong, able-bodied, healthy man, about 19 years of age, and was the principal means of support and source of subsistence for his parents, and younger brothers and sisters, his father being then crippled, and disabled to support his family; that by reason of the death of said John Shea, caused by the wrongful act and negligence of the defendant as aforesaid, his said parents have sustained damage to the amount of $5,000.

Wherefore, by reason and force of the statute, this plaintiff demands judgment against the said defendants for $5,000, besides the costs of this action.

To this complaint the defendant interposed a demurrer on the ground that it appeared upon the face thereof that the same did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the order of the court, with leave to the plaintiff to amend his complaint within 20 days from the date thereof upon payment of $10 costs; from which order the plaintiff brings this appeal.

Cotzhausen, Sylvester & Scheiber, for appellant, Stephen A. Cahill, Adm'r, etc.

Wells, Brigham & Upham and J. G. Jenkins, for respondents, Frederick Layton and another.

CASSODAY, J.

The south half of the block extended to the dock-line of the river on the east, to Fowler street on the south, to West Water street on the west, and to an alley on the north, which alley extended from West Water street to the dock-line of the river. In this south half of the block the defendants occupied a large brick building on a lot fronting on West Water street and extending back to the dock-line of the river, and from the rear end of which brick building, a platform projected over a roadway to such dock-line, at such an elevation that a team of horses and a wagon of ordinary height could be driven under it, along and upon said roadway, without hinderance but not sufficiently elevated to admit of the passage of a teamster sitting upon such wagon. The several proprietors and occupants of lots and parts of lots in this half block had for many years in common maintained a roadway extending across the end of the several lots along the dock-line from the east end of Fowler street to the east end of the alley, which roadway passed under and was spanned by the platform above mentioned. Thus this roadway, Fowler street, and the alley at all times afforded to all such occupants and proprietors, and their agents and servants, and to the public in general, access for teams and wagons to and from the rear ends of all the various buildings in said half block to West Water and other streets of the city. In this half block, and adjacent to the building occupied by the defendants, was a store occupied by Plankinton & Armour, the rear end of which extended to the roadway.

At the time of the injury the deceased was engaged in the employment of Plankinton & Armour, hauling pork from the rear end of their store, and while so engaged driving a team of horses drawing a common freight wagon loaded with pork in barrels and other goods from the rear end of their store along the roadway to and under the overhanging platform, his head and breast were forced against the south edge of the platform, whereby he was thrown backward upon the barrels in the wagon with such violence that he was greatly injured and soon died. Since the allegation is, not that he was thrown backwards against barrels, but upon the barrels, it is quite evident that he must have been upon the barrels at the time, and not down on the floor of the wagon. It appears from the complaint that the several streets named were public highways, and that the alley was a public alley, and also a public highway. There is no allegation, however, that the roadway was a public roadway, highway, street, alley, or public way of any kind. There is no allegation that there had been any recent change in the condition or use of the roadway, but on the contrary it is alleged that it had been used in the same condition for many years. There is no allegation that there had been any recent change in the platform, but, on the contrary, it is alleged that it had been kept and maintained as it then was for a long time prior thereto. True, it is alleged that at the time of the accident the defendants had omitted and neglected to keep or have at...