Daniels v. City of Racine

• Decision Date: 22 March 1898
• Citation: 98 Wis. 649,74 N.W. 553
• Parties: DANIELS v. CITY OF RACINE.
• Court: Wisconsin Supreme Court

98 Wis. 649

74 N.W. 553

DANIELS

v.CITY OF RACINE.

Supreme Court of Wisconsin.

March 22, 1898.

Appeal from circuit court, Racine county, Frank M. Fish, Judge.

Action by Mary Daniels against the city of Racine. From a judgment dismissing her complaint on demurrer, plaintiff appeals. Affirmed.Ritchie & Heck, for appellant.

C. C. Gittings, for respondent.

CASSODAY, C. J.

This is an action for personal injury sustained by the plaintiff by reason of an alleged defective sidewalk. The complaint alleges, in effect, that the sidewalk on the south side of Eighth street was built of pine planks laid on pine stringers, and extended from Washington avenue westward over 200 feet in length; that August 5, 1897, and for several months immediately prior to that date, said sidewalk was and had been out of repair, and in an unsafe condition for travel; that many of the planks were rotten, decayed, loose, and broken, and many of the stringers were rotten and decayed, and the defendant had negligently permitted the same during all of that time; that on the day named the plaintiff, while carefully walking on said sidewalk at a point designated, was, by reason of such unsafe condition, and without fault on her part, tripped, and violently thrown to the ground, and thereby sustained serious injury, for which she claims $5,000 damages; that August 26, 1897, the plaintiff caused to be served on the defendant's city clerk a notice in writing stating the time and place where her damage occurred, and describing the insufficiency and want of repair of the sidewalk which caused it, and prayed judgment accordingly. To such complaint the defendant demurred on the ground that it appears upon the face thereof that the complaint does not state facts sufficient to constitute a cause of action. Upon the hearing of the cause the court entered an order sustaining the demurrer, and thereupon entered judgment dismissing the complaint. From that judgment the plaintiff brings this appeal.

The demurrer was sustained on the ground that the notice required by Rev. St. § 1339, as amended by Laws 1897, c. 236, was insufficient. By that amendment the notice of ninety days, as originally required, was reduced to “thirty days in the case of any county or town, and fifteen days in the case of any city or village.” Prior to that amendment, this court had repeatedly held, in effect, that a complaint which failed to allege the giving of the notice required by the statute was defective, and that such defect could be taken advantage of by demurrer. Benware v. Town of Pine Valley, 53 Wis. 527, 10 N. W. 695;Wentworth v. Town of Summit, 60 Wis. 381, 19 N. W. 97;Flieth v. City of Wausau, 93 Wis. 446, 67 N. W. 731. Our statutes on highways were borrowed from Massachusetts. Several years ago they were extended to cities. Rev. St. § 1347; Huston v. City of Ft. Atkinson, 56 Wis. 354, 14 N. W. 444. At an early day it was held in Massachusetts that at common law no action could be sustained against a town for damages by reason of a defective highway. Mower v. Leicester, 9 Mass. 247; Holman v. Inhabitants of Townsend, 13 Metc. (Mass.) 297, 300; Sawyer v. Inhabitants of Northfield, 7 Cush. 494. The same rule was applied to cities. Barry v. City of Lowell, 8 Allen, 127. In Oliver v. Worcester, 102 Mass. 499, the court said that: “To render municipal corporations liable to private actions for omission or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate capacity, an express statute is doubtless necessary. Such is the well-settled rule in actions against towns or cities for defects in highways.” In a later case, Gray, C. J., in a very lengthy and learned opinion, reviews the English and American cases, and states as his conclusion that: “There is no case in which the neglect of a duty imposed by general law upon all cities and towns alike has been held to sustain an action by a person injured thereby against a city when it would not against a town. The only decisions of the state courts in which the mere grant by the legislature of a city charter authorizing and requiring the city to perform certain duties has been held sufficient to render the city liable to a private action for neglect in their performance when a town would not be so liable are in New York since 1850, and in Illinois.” Hill v. City of Boston, 122 Mass. 344, 379. That opinion is expressly considered and...