Raymond v. Sauk Cnty.

• Decision Date: 07 January 1918
• Citation: 166 N.W. 29,167 Wis. 125
• Parties: RAYMOND v. SAUK COUNTY.
• Court: Wisconsin Supreme Court

167 Wis. 125

166 N.W. 29

RAYMOND

v.SAUK COUNTY.

Supreme Court of Wisconsin.

Jan. 5, 1918.

Dissenting Opinion, Jan. 7, 1918.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by Leslie V. Raymond against Sauk County. From judgment for plaintiff, defendant appeals. Reversed.

Winslow, C. J., and Vinje and Siebecker, JJ., dissenting.Bentley, Kelley & Hill, of Baraboo, for appellant.

Grotophorst, Thomas, Rieser & Quale, of Baraboo, for respondent.

ESCHWEILER, J.

The plaintiff and his wife, while riding in an automobile at about noon on August 13, 1916, on the road from Baraboo to Kilbourn, near a bridge at Dell creek, met with an accident causing personal injury to plaintiff and damage to his car by reason of its sliding off the highway into the ditch.

The plaintiff asserts that Sauk county became liable to him for such resultant damages on grounds which may be substantially stated as follows: That this was a county highway, and was defective and out of repair by reason of the negligence of the servants of the county, in that on the preceding day the agents and servants of the defendant negligently and carelessly spread upon said highway, at the place in question, large quantities of tar and oil without covering the same with sand or other similar material; that the place is on a steep hill, and that by reason of said large quantities of tar and oil thus deposited on such highway the same became so slippery that cars could not be kept in the road, but slipped out of the main highway into the ditch; that the claimant at the time and place exercised due care and caution, not knowing the defective condition of said highway; that in going down toward said bridge he struck the slippery place with his car; and that the said slippery condition caused the automobile to slide into the ditch and turn over. He alleges upon information and belief that many other cars prior to that time slid from the main highway into the ditch and were damaged; that the county knew or ought to have known the effects of placing upon the highways large quantities of oil and tar; and that by spreading such large quantities upon said hill on said highway it was made unsafe and dangerous for public travel. He also alleges that the county was further negligent in not putting up signs or giving warning of such defective condition of the highway. To this claim or complaint the defendant demurred on the ground that it appeared on the face thereof that there were not sufficient facts stated to constitute a cause of action. The demurrer being overruled, the defendant appealed.

[1] No right of action can arise against a municipality in this state for accidents happening on the highway unless such liability is created by section 1339, Wis. Stats., there being no common-law liability. Uecker v. Clyman, 137 Wis. 38, 118 N. W. 247;Maxwell v. Wellington, 138 Wis. 607, 120 N. W. 505.

[2] Section 1339, so far as material to the present case, provides that, if any damage shall happen to any person or his property by reason of the insufficiency or want of repair of a road which any county shall have adopted as a county road and is by law bound to keep in repair, such county shall be liable therefor. The fact that the county is making repairs does not relieve it from the necessity of exercising ordinary care to protect travelers on the highway from injury during the time of making such repairs. Klatt v. Milwaukee, 53 Wis. 196, 10 N. W. 162, 40 Am. Rep. 759.

[3] If a highway is discontinued or altered, it is the duty of the municipality to erect and maintain suitable signals or barriers to warn travelers of the fact. Bills v. Kaukauna, 94 Wis. 310, 68 N. W. 992;Hanson v. Clinton, 156 Wis. 147, 145 N. W. 646.

[4] Furthermore, a traveler has the right to assume that the duty of such municipality has been performed, and that the public highway is reasonably safe for travel. Seward v. Milford, 21 Wis. 485;Wall v. Highland, 72 Wis. 435, 39 N. W. 560;Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St. Rep. 895, note to 21 L. R. A. (N. S.) 623, 652.

[5] A traveler may pass upon such a highway while knowing that it is in some respects defective, if nevertheless he exercises ordinary care in the use of such highway in view of its defective condition, and such use is not of itself, as a matter of law, contributory negligence. Schmidt v. Town of Franklin, 164 Wis. 128, 159 N. W. 724;Jenewein v. Irving, 122 Wis. 228, 99 N. W. 346, 903.

[6] But under all situations the plaintiff himself must exercise ordinary care for his own safety. A standard has been pretty definitely asserted by prior decisions of this court as to what is the ordinary care required of the driver of an automobile on the public highway in this state. In Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, and Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. 482, it was held that a person in driving his automobile on the highways must maintain such rate of speed that he can bring it...