Higgins v. City of Superior

• Decision Date: 08 January 1908
• Citation: 134 Wis. 264,114 N.W. 490
• Parties: HIGGINS v. CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

134 Wis. 264

114 N.W. 490

HIGGINS

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by E. A. Higgins against the city of Superior. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

On October 1, 1904, the plaintiff was driving upon Fifty-Eighth street, one of the public streets of the city of Superior. He was going toward his home, and was run into by a team and wagon of the city fire department, driven by one of the city's firemen, Larry Strong, and as a result of the collision the plaintiff's horse was killed, his buggy destroyed, and his leg was crushed and broken, so that he has entirely and permanently lost the use of it, and he has sustained other injuries. It is alleged that the driver of the city team had been employed by the defendant, and placed in charge of the city team about one year prior to the time of the accident, and that to the knowledge of the defendant he “was addicted to the use of intoxicating liquors and habitually intoxicated, wholly and entirely incompetent for service as a fireman and in the driving and handling of said team, and he was wholly and entirely unfit for said service, habitually reckless, careless, and negligent, and unsafe and dangerous to public travelers upon said streets.” It is also alleged that “the defendant was careless and negligent in employing said Larry Strong, in placing him in its service as a fireman, and in placing him in charge of, giving him authority and control over, said team and the driving and handling of the same.” It is also alleged that, having knowledge of these facts and the negligent manner in which such driver handled the team and used the public streets, “the defendant carelessly and negligently failed and neglected to discharge the said Larry Strong, its said fireman, or to take him out of the defendant's service, but, on the contrary, carelessly and negligently retained him in its services, and continued him in charge of its said team and wagon until after the accident and injury to the plaintiff; and the defendant, and its officers, agents, and servants having charge and control of its streets, carelessly and negligently failed and neglected to take any steps or means to prevent the said Larry Strong from so driving and handling said team on said Fifty-Eighth street, or to prevent him from so obstructing, endangering, and impeding public travel thereon, * * * said fireman thereby, and through defendant's carelessness and negligence, creating and becoming a public nuisance upon said streets, and endangering and obstructing the public use and travel on said streets.” Such conduct and negligence of the city officers in not removing him, and in not preventing such use of the street, is charged to have constituted an obstruction and a nuisance and to have been the cause of plaintiff's injuries. Damages are demanded in the sum of $12,000. Defendant's demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained. This is an appeal from the order sustaining the demurrer.W. P. Crawford, for appellant.

T. L. McIntosh, City Atty. (L. K. Luse, of counsel), for respondent.

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