King v. City of Oshkosh

• Decision Date: 28 January 1890
• Citation: 75 Wis. 517,44 N.W. 745
• Parties: KING v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

75 Wis. 517

44 N.W. 745

KING

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Winnebago county.

The plaintiff brought this action to recover damages for personal injuries received by him by reason of falling over a hydrant in the defendant city, while walking on one of the streets therein in the night-time. The hydrant over which plaintiff fell is within the limits of the sidewalk on Main street, near the Revere House. It is 15 inches high, and is located about 2 feet from the curb or outer edge of the walk. This walk is 12 feet wide. Main street is one of the principal thoroughfares in the city. The hydrant was placed and maintained there by a private company or corporation, with the consent of the city. All other hydrants in the city (there are 85 of them) were located, with a single other exception, outside the curb, or very near it, on the inside. The plaintiff testified that the night was dark when he was injured, and he did not know of the hydrant. The testimony tends to show that the plaintiff's injuries were quite serious, and may permanently impair his health and ability to earn money. A special verdict was found to the effect that the plaintiff was injured by stumbling over the hydrant in question; that he was exercising ordinary care at the time to avoid injury; that the hydrant had been maintained there, in the same condition, four years; that it was so located as to be dangerous to travelers on the sidewalk in the night, using ordinary care; and that the plaintiff sustained $600 damages by reason of the injuries so received. A motion for a new trial was denied, and judgment for the plaintiff entered for the damages assessed by the jury. No question is raised on the pleadings or instructions to the jury. Error is assigned upon certain rulings on objections to testimony. These are stated in the opinion. The defendant appeals from the judgment.

M. H. Eaton, for appellant.

Finch & Barber, for respondent.

LYON, J., ( after stating the facts as above.)

I. The case is a very clear one, both on the law and facts. The jury found, upon sufficient testimony, that the hydrant upon which the plaintiff stumbled and was injured was a structure dangerous to travelers on the street in the night-time, while exercising ordinary care, and that it had been allowed to remain there, in the same condition, about four years. In other words, the jury found that the city had suffered a dangerous structure, a nuisance, to remain in its principal thoroughfare all that time. They also found that the injuries complained of were caused thereby, and that when injured the plaintiff was exercising reasonable and proper care. Under these facts, there can be no doubt of the liability of the city. The case of Hayes v. Oshkosh, 33 Wis. 314, is cited by counsel for the city as authority for the proposition that the city is not liable in this action. The rule of that case is not applicable. It was there held that the maxim, respondeat superior, did not apply, and hence the city was not liable for the negligent or wrongful act of its officer or employe. Many cases have since been determined by this court in which the same ruling has been made. Among these are Wallace...