Little v. City of Madison

Decision Date01 January 1880
Citation6 N.W. 249,49 Wis. 605
PartiesLITTLE, ADMINISTRATOR, ETC., v. THE CITY OF MADISON.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Dane county.Gill, Bashford & Spilde and W. F. Vilas, for respondent.

Smith & Lamb, for appellant.

COLE, J.

The learned circuit court instructed the jury, in substance, that the defendant city was liable for the injury sustained by the plaintiff's wife, if its police officers, or proper authorities, were negligent in failing to prevent the bear show in the street. This was supposed to be the meaning of the decision of this court on the former appeal, as reported in 42 Wis. 643. It is possible that this is an admissible construction of the opinion, arising from its brevity, and from the failure of the writer to express with precision the real ground upon which the complaint was held good. But it was to be regretted that the opinion is open to that construction, for certainly the writer did not intend to rest the liability of the city upon any such ground. In Schultz v. The City of Milwaukee, 5 N. W. REP. 342, Wis. 446, Mr. Justice Lyon states accurately the ground of that decision in saying that “the complaint was construed as alleging that the authorities of the city expressly authorized or licensed the exhibition of the bears in State street, knowing the dangerous character of the exhibition. I say in the opinion that the allegations of the complaint show that the agents of the city not only knowingly and carelessly allowed one of its principal streets to become obstructed by an exhibition of wild animals therein, which exhibition was calculated to produce injury to persons lawfully traveling along the street, but that it was averred that such exhibition was authorized and sanctioned by the city. By this language was meant that the city expressly authorized the bear show in the street; in other words granted the license to Carr to exhibit the animals in that place according to the complaint. But it was not intended to affirm the doctrine that the city was liable if its police officers neglected to prevent the owner of the bears from making an improper use of the street for a show ground.

The distinction seems obvious between a case where the officers of the city authorize and license a show in the highway--that is, become themselves active agents in the commission of the wrong--and where they are merely negligent in preventing such show or improper use of the street. Doubtless the...

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