Johnson v. City of Eau Claire

• Decision Date: 03 April 1912
• Citation: 149 Wis. 194,135 N.W. 481
• Parties: JOHNSON v. CITY OF EAU CLAIRE.
• Court: Wisconsin Supreme Court

149 Wis. 194

135 N.W. 481

JOHNSON

v.CITY OF EAU CLAIRE.

Supreme Court of Wisconsin.

April 3, 1912.

Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.

Action by Charles H. Johnson, as administrator of Orlow Johnson, deceased, against the City of Eau Claire. From an order overruling defendant's demurrer to the first cause of action alleged in the complaint and sustaining the defendant's demurrer to the second cause of action, both parties prosecute cross-appeals. Order reversed on both appeals.W. H. Frawley and T. F. Frawley, for plaintiff.

A. H. Shoemaker, for defendant.

TIMLIN, J.

The plaintiff, as administrator of Orlow Johnson, deceased, sets forth a first cause of action, by which he sought to recover from the city for personal injuries to his decedent resulting in death and caused by an alleged defect in a bridge in the public highway. In a second cause of action for the same death he sought to recover under the familiar “death act,” being section 4255, Stats. 1898. This count set forth that the deceased left surviving him his father and mother, also brothers and sisters. A demurrer to the first cause of action was overruled, and a demurrer to the second cause of action sustained. The defendant appealed from the first ruling and the plaintiff from the second.

[1] 1. A question affecting both counts of the complaint arises upon the contention of the defendant that the statute (section 1339, Stats. 1898) makes the city liable only for the insufficiency or want of repair of the highway or bridge, and that the facts set forth fail to show such condition. The insufficiency or want of repair complained of “consisted of a three-inch plank which was nailed to the floor of said bridge and extended about three inches above the floor, and that said plank was nailed diagonally across the said bridge, so that, when a team of horses are driven across the same, the said front wheels of the wagon would not strike the said plank at the same time.” We have the case of Kawiecka v. Superior, 136 Wis. 613, 118 N. W. 192, 21 L. R. A. (N. S.) 1020, in which the insufficiency consisted of a repair covering of two-inch plank over part of a sidewalk leaving at the junction of the old and the repaired portion a raise of two inches corresponding to the thickness of the new overlaid planking, and in which this defect was considered “too trifling and inconsequential;” also Burroughs v. Milwaukee, 110 Wis. 478, 86 N. W. 159, in which a depression of 1 1/2 inches was considered not an actionable insufficiency; also Kleiner v. Madison, 104 Wis. 339, 80 N. W. 453, in which an apron or covering of boards over a cement sidewalk which presented a raise of somewhat less than two inches was held not to be an actionable defect. On the other hand, we have the case of Stilling v. Thorp, 54 Wis. 528, 11 N. W. 906, 41 Am. Rep. 60, where one side of a bridge was from 4 to 12 inches lower than the other, and the bridge was about 2 feet out of line with the road, and the surface of the bridge covered with ice, and wherein it was held that there was evidence of insufficiency proper to be submitted to the jury; also Koenig v. Arcadia, 75 Wis. 62, 43 N. W. 734, where there was in the planking of a bridge a hole or rut in the wagon track about 3 feet long, 3 1/2 inches wide, and 3 inches deep, caused by wearing through the upper layer of plank, and it was ruled that this presented evidence of insufficiency or want of repair sufficient to be submitted to a jury. In Lynch v. Waldwick, 123 Wis. 351, 101 N. W. 925, there was at the junction of the bridge planking and the ascending approach a piece of round timber or a log about four inches high so laid that it formed an upright shoulder against which a vehicle would strike in coming up the grade, and before it reached the planking. In that case this seems to have been considered to present evidence from which the jury might find an insufficiency or want of repair in the highway. In Dralle v. Reedsburg, 130 Wis. 347, 110 N. W. 210, Id., 140 Wis. 319, 122 N. W. 771, there was a ledge of rock extending diagonally across the traveled track of the highway, and from four to ten inches high, and this was held to be evidence of an actionable defect or insufficiency. Other cases might be cited, such as Wanta v. Railway Co., 134 N. W. 133. But the foregoing cases sufficiently present the contention of the parties on this point. Rules and instances are cited from the decisions made by courts in other states, but they are not helpful. In all such legal situations where the statute uses general descriptive words to indicate the conditions of fact upon which the liability of the defendant must turn there necessarily occur cases clearly within the general terms of the statute, cases clearly without the terms of the statute, and cases in which the statute is of doubtful applicability. It is exceedingly difficult to formulate any general rule that will be of practical aid in the cases last mentioned. It has sometimes been said that the defector insufficiency would fall within one class or the other, depending upon whether reasonable men could or would differ in the inferences as to insufficiency to be drawn by them from the facts in evidence. This, however, does not help much. It is a sort of argumentum ad hominem, and amounts in the last analysis substantially to saying that those who differ with us are not reasonable men. There are, however, many situations arising in the law in which the courts must apply rules of law by a process of inclusion or exclusion of particular cases until from a great number of instances something approaching a uniform rule can be deduced. This is one of these cases. It will not do to rest the rule upon inches only. That is a factor in arriving at the result, but the other conditions and surrounding circumstances must also be considered. The fact that there was a single plank laid on the surface presenting against the wheel a raise on one side and a drop on the other, and that it lay diagonally across the wheel track, causing first a lift on one side of the vehicle then a drop on that side, and perhaps simultaneously with the last-mentioned drop a lift on the other side, are matters to be considered in connection with the height of the raise over the level floor of the bridge. It seems to be a question of fact whether such plank would be dangerous to one in the exercise of ordinary care. A momentary relaxation or distraction of attention at the instant when the wheel of the vehicle encountered this plank might cause an occupant of the vehicle to be thrown from his seat. It might not be inconsistent with ordinary care for the driver to relax attention or to have his attention diverted for an instant under such circumstances. The highway must be reasonably safe to those exercising ordinary care. In a city where there is much traffic, many passing vehicles and more things to distract the attention, a highway might be considered insufficient which would not be insufficient in a remote country district upon the very familiar rule of the law of negligence which apportions the care to the risk. While this is a very close case, we are inclined to believe that the conditions set forth in the pleadings were sufficient to admit evidence proper to be...