Jung v. City of Stevens Point

• Court: Wisconsin Supreme Court
• Writing for the Court: TAYLOR
• Citation: Jung v. City of Stevens Point, 74 Wis. 547, 43 N. W. 513 (Wis. 1889)
• Decision Date: 15 October 1889
• Parties: JUNG v. CITY OF STEVENS POINT.

74 Wis. 547

43 N.W. 513

JUNG

v.CITY OF STEVENS POINT.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Winnebago county.B. B. Park and Cate, Jones & Sanborn, for appellant.

Burke & Hiles, for respondent.

TAYLOR, J.

The respondent brought an action in the circuit court to recover damages of the appellant, for injuries sustained by him while traveling along one of the public highways of said city. He charges that he sustained the injury by reason of the neglect of the defendant to keep such highway in a reasonably safe condition for public travel. The highway upon which the injury was sustained was within the city limits, but outside of the densely populated part of the city. At the point in the highway where the injury was sustained, it ran along very near the banks of the Wisconsin river. There was a fence along the road on the land side thereof, but on the side next the river there was no fence or any other barrier. The accident happened on the 17th of April, 1886. At the time of the accident, and for some time previous thereto, the water of the river had risen above its banks, and overflowed the highway in question at the place where the injury occurred, and for about 60 rods in length along the road it was overflowed to the depth of 3 feet or more. The evidence tends strongly to show that the water was unusually high that spring, and at the time of the accident. The narrowest places on the overflowed road from the fence to the bank of the river was from 9 to 20 feet. On the day of the accident the plaintiff and another man were driving along this river road in a two-wheeled vehicle, drawn by one horse. The plaintiff was driving. Just before coming to the overflowed part of the highway, they met a man with a team, who had just passed along the overflowed road. As he passed them he testified that he told them to keep close to the fence. The plaintiff testified that he did not hear him say anything. Plaintiff testified that when he came to the overflowed part of the road he saw the wagon tracks coming out of the water, and drove right along. After driving some distance, the man riding with him said “Stop now;” that he stopped there, and undertook to turn around, and, in turning, the horse went over the bank into the river, and he was also thrown into the river. He was afterwards taken out of the water insensible, and very nearly drowned. On his cross-examination he said that, when the horse got belly-deep in the water, then he turned back, and more he did not know. When the horse got belly-deep, he suddenly went down. Whether there was a cross current at the place where he stopped and turned he could not tell. Upon the trial in the circuit court, the plaintiff had a verdict in his favor; and from the judgment entered on such verdict the defendant appeals to this court. The learned counsel assign for errors: (1) That the court erred in overruling the plea in abatement of the action pleaded by the defendant; (2) that the motion for a nonsuit should have been granted; (3) that the court erred in refusing to submit, as a part of the special verdict, a question propounded by the defendant, and submitting in its place one drawn by the court; (4) that the court refused to give an instruction asked by the defendant; (5) that the court erred in overruling the motion of the defendant to set aside the verdict as contrary to the law and evidence.

The question raised by the first assignment of error is whether, under the charter of the city of Stevens Point, it was not the duty of the plaintiff to present his claim to the common council for allowance, and whether that was not his only remedy. The charter of said city has the following provisions: “That no action, hereafter, shall be maintained by any person against the city of Stevens Point upon any claim or demand other than a city bond or order, unless such person shall have first presented his claim to the city council.” Section 8, subc. 6, c. 260, Laws 1877, and section 1, c. 191, Laws 1881. Section 9 of said subchapter 6 provides that “the determination of the common council disallowing * * * any claim of any person shall be final and conclusive, and a perpetual bar to any action in any court, * * * unless an appeal shall be taken from,” etc. The provisions of the charter of Stevens Point above referred to are substantially and almost literally the same as the like provisions in the charters of the city of Madison, and of the city of Eau Claire. This court considered and construed the meaning of the words “claim and demand” as used in said charters, and it was held that the words as used in said charters must be construed to mean claims and demands arising upon contract, and not arising out of a wrong or tort. See Kelley v. Madison, 43 Wis. 638;Bradley v. Eau Claire, 56 Wis. 168, 14 N. W. Rep. 10. The reasons given for such construction of the words used will be found in the opinions in said decisions, and need not be repeated here. Such reasons apply with the same force to the charter of Stevens Point as to the charters considered in the cases cited. The learned counsel for the appellant admit that the language used in the original charter of Stevens Point is the same as that used in the Madison and Eau Claire charters, and should receive the same construction; but contend that the amendment of said section 8, subc. 6, c. 260, Laws 1877, shows that the legislature intended to enlarge the meaning of the words “claim and demand” so as to include claims arising out of tort, as well as upon contract. The amendment added to said section 8 by section 1, c. 191, Laws 1881, has no necessary connection with the subject-matter of the original section; and it would have been more in harmony with correct legislation had it been enacted as a separate section. The object of tbe amendment is twofold: First, to make it the duty of the adjoining owner to keep the sidewalk in front of his lot or lots in repair; and, second, to make him pay to the city any damages which it might be compelled to pay for any injuries received by reason of the owner's neglect to keep the sidewalk in front of his premises in repair. We are unable to understand how this addition to the section can in any way change the construction which should be given to the original section. This case, so far as the meaning of the words “claim and demand” is concerned, is ruled by the cases above cited. There was no error, therefore, in overruling the plea in abatement of the action. The action was properly commenced in the circuit court.

Upon the second assignment of error, the learned counsel for the appellant insist that, upon the whole evidence, it is clear that the plaintiff was guilty of...