Hughes v. City of Fond Du Lac

• Decision Date: 29 January 1889
• Citation: 41 N.W. 407,73 Wis. 380
• Parties: HUGHES v. CITY OF FOND DU LAC.
• Court: Wisconsin Supreme Court

73 Wis. 380

41 N.W. 407

HUGHES

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

Jan. 29, 1889.

Appeal from county court, Winnebago county.

C. S. Matteson, for appellant.

P. H. Martin, for respondent.

COLE, C. J.

It appears from the complaint that while the plaintiff was driving with a horse and carriage, in the evening, along one of the public streets of the defendant city, his horse was frightened at a large wooden roller in the street, became unmanageable, partially overturned the carriage, and the plaintiff was thrown out upon the ground with violence, and greatly injured. This action is brought to recover damages for such injury. A demurrer to the complaint was sustained by the trial court on the ground that it states no cause of action. There is a section of the city charter which, as amended, provides that no action against the city on account of an injury received or damage sustained by means of any defect in the condition of any street shall be maintained unless the action shall be commenced within one year from the happening of the injury, nor unless notice in writing, signed by the party injured, shall have been given to the sidewalk superintendent of the city, or one of the aldermen of the ward in which such injury shall have occurred, within five days of the occurrence of such injury. Section 5, c. 299, Laws 1885. The complaint shows that within thirty days after the happening of the accident a written notice was given to the mayor and common council, stating the facts as to how and where the injury was sustained; but there is no averment that the five-days notice was given, which is required by section 5, c. 299. The complaint was doubtless held defective because it did not allege that such notice was given. The counsel for the defendant insists that the complaint is fatally defective for that reason, because, he says, the liability of the city is wholly statutory, and it was incumbent upon the plaintiff to show that he had complied with the requirements of the charter in that regard in order to maintain the action. In several actions against towns and cities for injuries suffered by reason of a defective highway or sidewalk, the giving of the prescribed notice has been held to be in the nature of a condition precedent to the right to sue for the damages. Susenguth v. Town of Rantoul, 48 Wis. 334, 4 N. W. Rep. 328;Benware v. Town of Pine Valley, 53 Wis. 527, 10 N. W. Rep. 695;Wentworth v. Town of Summit, 60 Wis. 281, 19 N. W. Rep. 97. I should have great doubt about the validity of the provision requiring the notice to be given within five days of the injury, even if the liability of the city in the case was wholly statutory. The time fixed is unreasonably short, and in many cases could not be complied with. The injured person might be unconscious, or so seriously hurt that he could not state “the place where, and the time when, such injury was received, and the nature of the same,” within that period; so that the remedy given is coupled with an impossible condition. Such a provision is unreasonable and unjust, and fairly obnoxious to all the objections taken to the enactments in Durkee v. Janesville, 28 Wis. 464, and Hincks v. City of Milwaukee, 46 Wis. 559, 1 N. W Rep. 230. It is an arbitrary and unreasonable provision, which professes to give a remedy for an injury, but annexes to it a condition which, in many cases, cannot be complied with, because the time fixed for serving the notice is so short. But the facts in this case show that the city created a nuisance in the public street, and it is liable therefor upon the same principles as an individual would be for a similar act. It is a fair inference from the complaint that the roller--which was an unsightly object, naturally calculated to frighten horses--was put and left in the street by the agents and servants of the...