Crowley v. Clark Cnty.

Decision Date04 June 1935
Citation219 Wis. 76,261 N.W. 221
PartiesCROWLEY v. CLARK COUNTY ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Clark County; Emery W. Crosby, Circuit Judge.

Affirmed.

In this action, commenced on April 11, 1934, the plaintiff Alice Crowley seeks to recover from the defendants, Clark county, Otto J. Weyhmiller, its highway commissioner, Tony Christman, its assistant highway commissioner, Charles Buss, John Okerlander and Elmer Anderson, members of its highway committee, and Earl Zimmerman, one of its patrolmen, damages which she sustained as a result of a collision between an automobile in which she was riding and a motor-powered road grader owned by Clark county, which at the time of the accident was being used in the work of removing snow from state trunk highway No. 29 in Clark county.

The complaint, in substance, alleges that Clark county is a duly organized county of the state of Wisconsin; that at all of the times mentioned in the complaint the defendants Charles Buss, John Okerlander, and Elmer Anderson were the duly constituted highway committee of Clark county, the defendant Otto J. Weyhmiller was the highway commissioner of Clark county, the defendant Tony Christman was the assistant highway commissioner of Clark county, and the defendant Earl Zimmerman was an employee of Clark county, principally employed as a grader driver; that the laws of this state require that all state highways shall be maintained by and at the expense of the state, but also permit the state to make arrangements with the several counties for the maintenance of state trunk highways, including the removal of snow therefrom, by the county forces, section 84.07 (1), Stats. 1933; that prior to December 23, 1933, the state highway commission entered into an arrangement with Clark county whereby the latter agreed to keep state trunk highway No. 29 open for travel in Clark county during all seasons, for which services and the use of its equipment the state highway commission agreed to reimburse the county; that it was contemplated that the work of snow removal might be performed in the nighttime as well as in the daytime; that it was the duty of Clark county and of the other defendants who were its agents and servants to furnish suitable, adequate and properly and lawfully equipped machinery for the performance of the work of removing snow from the highway; that Clark county was the owner of a certain gasoline motor-powered road grader; that said road grader was being employed in removing snow from said highway during the evening of December 23, 1933; that at said time it did not have or carry at least two red signal lanterns or lights for use in the nighttime, and did not in fact carry or display any red signal lights at all, as required by the laws of this state, section 85.06 (2) (b, c, g); that by reason of the fact that said grader did not carry or have at least two red signal lanterns or lights, said grader was, to the knowledge of all of said defendants, not a suitable, adequate, or properly or lawfully equipped machine for use in removing snow from the highways after dark; that all of the defendants well knew that the use of the grader in the nighttime was unlawful and prohibited by law, and that its use and operation upon a highway in the nighttime would endanger the life and safety of persons lawfully and carefully traveling in automobiles upon said highway, and that its use would constitute a nuisance upon such highway; that notwithstanding the fact that said grader was not equipped with a taillight, clearance lights, and at least two red lanterns, said grader was negligently, carelessly, and in violation of law set aside and designated for use and was used in removing snow from state trunk highway 29 in the nighttime during the winter of 1933 to 1934; that on the 23d day of December, 1933 (alleged upon information and belief), the said members of the highway committee, the said highway commissioner and his assistant, negligently and carelessly instructed defendant Zimmerman to remove snow from said highway in the vicinity of the village of Owen, and to use and employ for that purpose the said road grader, all of them then and there well knowing that said road grader would have to be operated and used on said highway after dark; that on the afternoon of December 23, the defendant Zimmerman commenced the work of removing the snow on said highway by means of said grader, and negligently and carelessly continued to use said grader for that purpose after dark without any of the signal lights or lanterns required by law; that owing to the fact that prior to the accident snow and sleet had fallen upon the grader, which was of a gray color, it was more difficult for motorists, approaching it from the rear, seasonably to discover its presence upon the highway; that under all of the circumstances the said grader constituted and was a menace to the safety and lives of motorists lawfully traveling upon said highway to the rear of said grader and in the same direction, all of which the defendants, in the exercise of ordinary care and diligence, could and should have known; that at 8:30 o'clock on the evening of said 23d day of December, the plaintiff was riding as the guest of one Theresa Marking and in the latter's automobile; that while the plaintiff and her hostess were both exercising due care, the automobile in which they were riding collided violently with the rear of said grader as a result of which collision the plaintiff sustained serious injuries, and that her claim was duly presented to Clark county and disallowed.

The county demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against it. The demurrer, after due hearing, was sustained and an order sustaining the demurrer and dismissing the complaint as to the county was entered on October 13, 1934. From that order the plaintiff appealed.

Bundy, Beach & Holland, of Eau Claire, for appellant.

John M. Peterson, Dist. Atty., and Hugh G. Haight, both of Neillsville, for respondents.

NELSON, Justice.

It is earnestly contended on behalf of the plaintiff that the trial court erred in sustaining the demurrer interposed by Clark county. It is argued that the operation of the grader upon the highway after dark without its carrying “at least two red signal lanterns or lights” unnecessarily obstructed the highway and constituted a nuisance for which the county should respond in damages for all injuries caused thereby. It is sought to uphold the sufficiency of the complaint under such cases as Little v. City of Madison, 42 Wis. 643, 24 Am. Rep. 435;Hughes v. Fond du Lac, 73 Wis. 380, 41 N. W. 407;Cairncross v. Village of Pewaukee, 78 Wis. 66, 47 N. W. 13, 10 L. R. A. 473; and Jensen v. Oconto Falls, 186 Wis. 386, 202 N. W. 676, 678. In each of those cases the asserted right to recover damages from the municipality was based upon its failure to maintain...

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    ...existence,' or quasi municipal corporations, Frederick v. Douglas County (1897), 96 Wis. 411, 71 N.W. 798; Crowley v. Clark County (1935), 219 Wis. 76, 261 N.W. 221, is not determinative of whether the 14th Amendment applies to their composition when the members of a county board are determ......
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