Little v. City of Madison

• Decision Date: 23 June 1880
• Citation: 6 N.W. 249,49 Wis. 605
• Parties: LITTLE, Administrator, v. THE CITY OF MADISON
• Court: Wisconsin Supreme Court

6 N.W. 249

49 Wis. 605

LITTLE, Administrator, v. THE CITY OF MADISON

Supreme Court of Wisconsin

June 23, 1880

Argued May 27, 1880

APPEAL from the Circuit Court for Dane County.

After the former decision in this cause (reported in 42 Wis., pp 643-653), and after the cause had been remitted to the circuit court, the defendant answered, admitting that on the 15th of July, 1876, the officers of said city granted a license to one Carr to exhibit a bear or bears in the city but denying that such license authorized such exhibition to be made upon any public street, and alleging, in substance that the license was granted with full notice and instructions to Carr that the exhibition must be made "in some lot or inclosure or building away from the public streets and thoroughfares in said city." The answer further alleged that, if the exhibition was in fact given in a public street, it was so given in violation of said license, notice and instructions, and of law, and without the knowledge of the city or its officers or agents and that if State street was incumbered or obstructed, or a nuisance was created therein, by such an exhibition, the city, its officers and agents, had no notice or knowledge thereof before the time of the injury complained of. The answer also put in issue all other averments of the complaint, except as to the corporate character of the defendant.

The terms of the license actually granted by the city are sufficiently stated in the opinion. The other evidence need not be stated. Among the instructions given to the jury were these: 1. That the plaintiff could not recover on the ground that the city had granted the license put in evidence. 2. That "if the authorities having charge of the police arrangements of the city, and whose duty it was to see that the streets were kept in order and in a reasonably safe condition, or so free from unlawful obstructions as to be reasonably safe for travel, were chargeable with negligence, which was the cause of the injury, the city was liable;" and that it seemed "that this duty devolves upon the chief of police and his subordinates, all perhaps under the general direction of the mayor, in many respects at least."

There was a verdict for the plaintiff; a new trial was refused; and defendant appealed from a judgment on the verdict.

Judgment reversed and new trial awarded.

Brief for the appellant by Smith & Lamb, and oral argument by Mr. Lamb.

Brief for the respondent by Gill, Bashford & Spilde, and oral argument by Mr. Bashford and Wm. F. Vilas.

OPINION

ORSAMUS 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 is to be...