Ptak v. Kuetemeyer

• Decision Date: 09 May 1922
• Citation: 187 N.W. 1000,177 Wis. 262
• Parties: PTAK v. KUETEMEYER.
• Court: Wisconsin Supreme Court

177 Wis. 262

187 N.W. 1000

PTAK

v.KUETEMEYER.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Stanley F. Ptak against F. C. Kuetemeyer. From an order overruling a general demurrer to the complaint, defendant appeals. Affirmed.

Action to recover damages sustained by the death of plaintiff's son, alleged to have been caused by the negligence of the defendant, a plumbing and excavating contractor in the city of Milwaukee. Omitting formal parts, the complaint alleged, in substance:

“That, on the 11th day of April, 1919, the defendant was engaged in the work of digging and excavating a ditch in that public highway in the city of Milwaukee, known as Concordia avenue. That defendant had been engaged in the digging of said ditch for several days prior to the accident hereinafter mentioned and that the said ditch had been dug to its full depth at the time of the accident hereinafter described. The said ditch was 9 or 10 feet deep on one end and had been filled in, so that the ground sloped from this depth to a point on the other end of the ditch about 2 feet below the street level. That the said ditch was about 20 feet long, extending from the center of the street and the lot line, and was about 2 feet wide. That, during the work of digging said ditch and during the time when said ditch was being partly filled in, children from the surrounding neighborhood played in and about the said ditch, and that the defendant and his workmen had knowledge that children were so playing in and about said ditch. That on the 11th day of April, 1919, at about the hour of 6:30 o'clock in the afternoon, plaintiff's son, 6 years old, Jerome Ptak, playing with, and in company with, several of his companions, and standing near the opening of said ditch and near the edge thereof and being attracted thereby and allured thereto, without any fault on his part, fell into said ditch by the edges thereof giving way, causing him to be completely covered with the surrounding earth or ground, resulting in his suffocation and his immediate death, causing plaintiff to incur large expenses for the funeral and depriving him of the earnings of said child, and otherwise greatly damaging plaintiff, all to his damage in the sum of $5,000. That, at the time there was in force in the city of Milwaukee, an ordinance entitled, ‘Barriers and Lights on Streets, etc.,’ and known as section 28, chapter 25, of the General Ordinances of the city of Milwaukee, and reading as follows: ‘Section 28. It shall be the duty of every person who may receive a contract for the grading or any other repairing or improving any street in any ward of the city of Milwaukee, and of every person who shall be engaged in any above-named work, to see that such street, during the progress of such...