Klatt v. City of Milwaukee

• Decision Date: 18 October 1881
• Citation: 53 Wis. 196,10 N.W. 162
• Parties: KLATT v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

53 Wis. 196

10 N.W. 162

KLATT

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from county court, Milwaukee county.

J. V. V. Platto, for respondent.

J. R. Brigham, for appellant.

ORTON, J.

The accident which caused the injury complained of is alleged to have happened by reason of the city not keeping barriers and lights in the street where it occurred, (which was then being paved and thereby rendered unsafe for travel,) which would have prevented it. The duty of the city to protect the traveling public from injury liable to happen in consequenceof street improvements of this character is the vital principle of this case, and before applying it to the facts and findings it is necessary to determine the nature of this duty of the city, and the extent and measure of the responsibility involved. When this duty is not directly and specifically imposed by law, it arises by necessary implication from the primary duty, which is so imposed upon the city, to keep its streets which have been opened to public use all the time fit and safe for such use. The right and duty to make improvement of streets by grading, paving, etc., in order to make and keep them in such fit and safe condition, do not constitute an exception to such primary duty, but are necessary to its best performance, and arise from it, and are consistent with it, and subsidiary to it, although for the time being and while such improvement is being made such streets are rendered less or wholly unfit or unsafe for such public use. The duty in question to protect the public by suitable precautions against danger and damage while so improving the streets, arises from and is connected with the right and duty to improve, and are both included in the first or primary duty imposed by law to keep the streets in repair and all the time in a condition safe to the traveling public, as well during the progress of improvements as at all other times. This must be so, else there is no liability for neglect of the duty in question, at least in this state, where the liability and right of action exist by statute, or not at all. The duty to repair and to keep in repair is coupled with the duty to protect the public against accidents while the streets are out of repair or while they are being repaired, and they must be kept in a safe condition, or the public must be protected from accident, in some proper way, while they are are unsafe. This view is sanctioned by many cases in this court and elsewhere.

In the leading case of City of Milwaukee v. Davis, 6 Wis. 377, it is said: “The leaving of the street in that impassable condition on the night in question, without lights, fence, or guard, or other token, * * * is in fact the gravamen of the complaint.”

In Seward v. Town of Milford, 21 Wis. 485, an instruction was approved, “that if the town had not had time to repair the road it should have put up and kept up proper guards at that place to notify and prevent travelers from going on the dangerous track.”

In Ward v. Town of Jefferson, 24 Wis. 342, the two duties are coupled together in the language: “And to have put the road in repair, or by other means to have guarded against and prevented the injury.”

In Hammond v. Town of Mukwa, 45 Wis. 35, the present chief justice said: “And we are clear that the town is primarily liable when it fails to keep such highway safe for public travel, or does not use proper precautions to warn travelers of the dangerous condition of the highway.”

It is said in Sherman & Redfield, Negligence, § 399, citing several authorities, “pending the work of rebuilding, if the public is put upon its guard, the town will be excused for the defective condition of the highway.” These references are quite sufficient to show by authority what is apparent in reason, that in the very nature of the duty to keep highways in repair and safe for travel is included the duty to use proper precautions against accident while they are unsafe and out of repair, and that the two duties, if they may be nominally separated, are of the same nature and obligation, and liability for their non-performance rests upon the same degree of negligence. It follows, therefore, that if the city could not be held to a strict and absolute, but only to a reasonable, performance of the duty to keep its streets in repair and safe for travel, and in respect thereto only to the exercise of ordinary care and prudence, and would not be held liable for an injury occasioned by their being out of repair and unsafe, without actual or presumptive notice that they are in such condition, it should be held to no stricter performance of the duty to protect the public by suitable precautions from injury while the streets are out of repair and unsafe for travel, and in respect thereto should be held to the exercise of the same degree of care and prudence. It is too well established to require the citation of authorities that if a street should suddenly and without warning to or fault of the city, come, by any means, into a condition dangerous to travel, the city would not be liable for damages occasioned thereby, without actual notice, or notice implied or presumed by lapse of time, of its condition, and until after a reasonable time for repairing it. By the same rule, when a...