Reed v. City of Madison

• Decision Date: 25 October 1892
• Citation: 53 N.W. 547,83 Wis. 171
• Parties: REED v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

83 Wis. 171

53 N.W. 547

REED

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Dane county; R. G. SIEBECKER, Judge.

Action by Marcia W. Reed against the city of Madison. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.Sanborn & Kerr and Smith & Buell, for appellant.

The fact that a child injured by defects in a street was at the time using the street for play does not prevent recovery for the injury. Chicago v. Keefe, 114 Ill. 222, 2 N. E. Rep. 267; Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. Rep. 155; McGuire v. Spence, 91 N. Y. 303; Donoho v. Iron Works, 7 Mo. App. 447, approved in 75 Mo. 404; McGarry v. Loomis, 63 N. Y. 104;Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. Rep. 442; Birkett v. Ice Co., 110 N. Y. 504, 18 N. E. Rep. 108; Railway Co. v. McWhirter, (Tex. Sup.) 14 S. W. Rep. 26;Mayor, etc., of Vicksburg v. McLain, (Miss.) 6 South. Rep. 774;Blodgett v. Boston, 8 Allen, 237;Gulline v. City of Lowell, 144 Mass. 491, 11 N. E. Rep. 723; Hunt v. Salem, 121 Mass. 294;Bliss v. South Hadley, 145 Mass. 91, 13 N. E. Rep. 352; Strong v. Stevens' Point, 62 Wis. 255, 22 N. W. Rep. 425;Sutton v. Wauwatosa, 29 Wis. 21.

B. W. Jones, for respondent.

ORTON, J.

The accident and injury complained of took place on the evening of the 11th day of September, 1878, about 6 o'clock, when the plaintiff, now of full age, was only seven years old, and on a sidewalk on the southerly side of Main street, opposite lot 4, block 50, in the city of Madison, which was and had been for over six months out of repair, and dangerous to travelers at that place. The plaintiff, who lived with her father and mother near that place, started to go on said sidewalk westerly to the junction at Brown and Main street, to visit and play with some playmates of hers at that place, taking with her a hoop, and a pine stick about 18 inches long to propel and guide it with. While she was running slowly down the sidewalk towards her place of destination, guiding and following her hoop, which ran down the walk by its own momentum slightly faster than an ordinary pedestrian would usually walk, and while using due care, the end of one of the boards of the walk, which stuck up several inches above the other boards and the general level of the walk, caught her foot and threw her violently down, and caused the stick she held in her hand to penetrate her left eye and to destroy its sight; and the sight of her right eye, by sympathy, was thereby also partially lost. These are substantially the facts set out in the complaint. It is also alleged in the complaint that Elisha R. Reed, the father of the plaintiff, on the 11th day of October, 1878, commenced an action against the city for and on account of said injury to the plaintiff, and for damages to himself; and the summons, together with a verified complaint in the action, were duly served on the then mayor of said city, and the city appeared and answered in the action. A copy of said complaint is attached to the complaint herein as an exhibit. That complaint showed the same insufficiency and want of repair of the sidewalk at the same place, and described the particulars thereof; and alleged that the city authorities had six months' notice thereof; and that the plaintiff was the father of the present plaintiff; and set out the circumstances of the accident, and of her personal injury, and the loss of her services occasioned thereby. When the accident happened, and said former action was commenced, there was no statute requiring notice to the city officers of the particulars of the insufficiency of the walk, and of the accident and injury, within 90 days thereafter. Such notice was first required by section 1339, Rev. St., which took effect November 1, 1878, when there were yet remaining about 40 days in which such notice might have been given. There was no other notice given by or for this plaintiff, except that which was given by and through said complaint, by her father and natural guardian. A demurrer to the complaint was sustained by the circuit court, and this appeal is from said order. The positions assumed by the learned counsel of the respondent in support of the demurrer will be disposed of in their order. Nearly every question raised has been decided by this court.

1. The plaintiff, as a child seven years of age, had the same rights as an adult traveler on the highway or sidewalk, and her negligence is to be determined by the same principles of law, according to the circumstances of the case. The only difference is, she ought not to be held to as high a degree of care and responsibility. Strong v. Stevens' Point, 62 Wis. 255, 22 N. W. Rep. 425;Ewen v. Railway Co., 38 Wis. 613;Johnson v. Railway Co., 56 Wis. 274, 14 N. W. Rep. 181, Railroad Co. v. Gladmon, 15 Wall. 401;Lynch v. Smith, 104 Mass. 52.

2. As contended by the learned counsel of the respondent, the liability of cities for injuries caused by the want of repair and dangerous condition of their sidewalks in this state is exclusively statutory. This has been so clearly and recently decided by this court that it is no longer open for argument. Stilling v. Thorp, 54 Wis. 528, 11 N. W. Rep. 906, and the cases cited in the opinion; McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. Rep. 689.

3. The remedy of the statute is available only to those who were using the sidewalk or highway for the purpose of traveling thereon when injured. Foshay v. Glen Haven, 25 Wis. 288;Wheeler v. Westport, 30 Wis. 392;Kelley v. Fond du Lac, 31 Wis. 179;Hawes v. Fox Lake, 33 Wis. 442;Harper v. Milwaukee, 30 Wis. 371;Houfe v. Fulton, 29 Wis. 304;Draper v. Ironton, 42 Wis. 696;Goeltz v. Town of Ashland, 75 Wis. 642, 44 N. W. Rep. 770.

4. When the liability is statutory, and confined to travelers, as above held, a child who is injured while using a sidewalk both for travel and for play at the same time may recover. This presents a new question to this court. The nearest it has been involved in any case is in Strong v. Stevens' Point, supra. The circuit court left it to the jury “whether the boy was on the bridge [through which he fell into the river] for play or pastime, and not for the purpose of going over it.” The jury found for the plaintiff, and the judgment was affirmed by this court. From this peculiar language of the instruction the jury may have found that the boy was on the bridge both for play and to go over it. It is said in the opinion “that it is contended that the deceased boy was not a traveler upon the highway, but that he was on the bridge for mere play or pastime.” This would seem to be a strong intimation that it would be no objection to the recovery if the boy was on the bridge both for play and for travel at the same time. This court, having followed Massachusetts in respect to other questions of statutory liability, may well accept the decisions of that state as sufficient authority on this question also. Blodgett v. Boston, 8 Allen, 237;Gulline v. Lowell, 144 Mass. 491, 11 N. E. Rep. 723; Hunt v. Salem, 121 Mass. 294;Bliss v. South Hadley, 145 Mass. 91, 13 N. E. Rep. 352. It would seem to be reasonable that if the person injured, whether an infant or an adult, was, in a proper sense, traveling on the sidewalk, it should not be an objection to his recovery that at the same time he was indulging in play or pastime not inconsistent with his being a traveler also. A person passing from place to place on a sidewalk is a traveler thereon. He is going somewhere. It makes no difference whether it is for business or for pleasure, or merely to gratify an idle curiosity. Chicago v. Keefe, ...