Raymond v. City of Sheboygan
| Decision Date | 13 December 1887 |
| Citation | 35 N.W. 540,70 Wis. 318 |
| Parties | RAYMOND v. CITY OF SHEBOYGAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Outagamie county.
This was an action brought by Henry Raymond against the city of Sheboygan for injuries received from the overturning of his buggy, caused by an obstruction in the streets of the city. On the special verdict rendered by the jury, judgment was given for defendant, and plaintiff appealed.Foster, Dean & Foster, for appellant.
A. C. Prescott, for respondent.
The appellant brought this action to recover damages for injuries sustained while driving along one of the streets of the defendant city. The allegation in the complaint, which was sustained by the proof, was that his buggy was upset by coming in contact with a mound or pile of dirt in the street, which was dangerous to travelers. The city answered the general denial, and further, in substance, that the mound or pile of dirt which caused the injury was placed in the street, without its knowledge or consent, by one Joseph Keseberg, a resident of the city, and the owner of lots fronting and abutting the street where the pile of dirt was placed; that there was no contract relation between Keseberg and the city; and that the plaintiff had not exhausted his legal remedies against, nor taken any legal proceedings whateverto collect his damages from, Keseberg. The case went to trial on the merits, but the court finally gave judgment for the city on the matter pleaded in abatement. The question is, was that judgment correct under the circumstances?
By an amendment to the city charter, it is provided, whenever any injury shall happen to persons or property in the defendant city by reason of any defect or incumbrance of any street for which the city would be liable, and such defect or incumbrance was caused or procured by the wrong or negligence of any person, such person so guilty of the wrong or negligence shall be primarily liable for all damages for such injury, and the city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person. Section 24, c. 236, Laws 1874. The very obvious intent and meaning of this provision is to require the injured party first to exhaust all his legal remedies to collect his damages from the wrong-doer, or person causing the defect or placing the obstruction in the street, before the liability of the city shall be enforced. A similar provision is found in a number of the city charters of the state, and this court has had occasion to consider its effect in cases which have come before it. Its validity has been affirmed, and it has been held that it was intended to relieve “the city, as far as possible with justice to the injured party, from liability for injuries occasioned by obstructions unlawfully placed in its streets by persons for whose acts it was not directly responsible, and that whenever the person injured can, by the use of the remedies furnished him by the law, recover his damages of the party primarily in fault, therefore primarily liable,” he must do so before resorting to his remedy against the city. McFarland v. City of Milwaukee, 51 Wis. 691, 8 N. W. Rep. 728. The same doctrine as to the...
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