Robb v. City of Milwaukee

• Decision Date: 12 January 1943
• Citation: 241 Wis. 432,6 N.W.2d 222
• Parties: ROBB v. CITY OF MILWAUKEE (two cases).
• Court: Wisconsin Supreme Court

241 Wis. 432

6 N.W.2d 222

ROBB

v.CITY OF MILWAUKEE (two cases).

Supreme Court of Wisconsin.

Nov. 10, 1942.

Rehearing Denied Jan. 12, 1943.

Appeals from judgments of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

FAIRCHILD and FRITZ, JJ., dissenting.

Actions by Marie Robb and Hubert Robb against the City of Milwaukee to recover for personal injuries, commenced March 20, 1939. From a judgment entered January 8, 1942, the city appeals.

The plaintiff Hubert Robb is the husband of Marie who was walking east on the sidewalk adjacent to a baseball field maintained by the city during the progress of a ball game and was struck in the eye by a batted hard baseball which caromed off the top of a woven wire fence six feet high just outside the walk. She sues the city to recover for her injuries and Hubert sues for loss of her services and the expense of her care. The main facts bearing upon the hazard to pedestrians from maintenance of the field are summarized as follows: The ball field is for playing regulation baseball and a diamond of regulation dimensions was laid out and is maintained by the city. It is 276 feet from the home plate along the extended third base line to the fence, and about 400 feet from the home plate to the fence along a line through second base. There is a railroad right of way along the westerly side of the field. The fence along the near edge of the right of way is ten feet high. It is 325 feet from this fence to the home plate along the extended first base line, and 450 feet at the southwest corner of the field. These fences were built by the city when the ball field was laid out and are maintained by it. There is a line of trees about fifty feet apart along east Pryor Avenue just inside the fence. Adult players use the field for playing city league games with permission of the city authorities managing the field. These league games are umpired by persons employed and paid by the city and a superintendent employed by the city is in attendance during their progress. The city exacts a fee for use of the field from each league team, and these fees just about pay the expense of the city for the umpire and superintendent. Balls are frequently batted over the fence into and across East Pryor Avenue. Houses have been struck on the far side of the street by batted balls, automobiles parked on the far side of the street have been struck. A window so broken in a house was replaced by the city. Ground rules are established for playing of league games by which a ball batted over the fence east of a specified light pole counts as a two base hit, and one batted over to the right of it counts as a home run. During some games, no balls are batted over the fence. During others two or three are batted over. No signs are posted warning pedestrians of danger or forbidding use of the sidewalk during ball games. Other material matters are stated in the opinion.

Walter J. Mattison, City Atty., and Omar T. McMahon, Asst. City Atty., both of Milwaukee, for appellant.

Michael J. Dunn, Jr. of Milwaukee, for respondents.

FOWLER, Justice.

As appears from the foregoing statement the plaintiff Marie was walking east on the sidewalk on the north side of a city street adjacent to a ball field maintained by the city when struck in the eye with a hard baseball knocked by a batter that caromed off the top of a six-foot fence close to the sidewalk. On the trial a jury found (1) playing baseball on the field rendered the adjacent walk “unsafe and dangerous to pedestrians;” (2) this was the efficient cause of plaintiff's injury; (3) a want of ordinary care on plaintiff's part contributed to her injury; (4) 25% of the causal negligence was attributable to the plaintiff Marie. The court under the comparative negligence statute, sec. 331.045, granted judgment on the verdict for 75% of the damages assessed by the jury. From this judgment the city appeals. The plaintiffs by motion for review contend that the court on their motion after verdict should have changed the answer of the question on contributory negligence from “yes” to “no” and granted judgment for the full amount of the damages assessed.

The court charged the jury that it was the duty of the city “to keep the public streets reasonably safe for public travel”; that “reasonably safe” does not mean “absolute safety” or “freedom from hazard;” that the city is not an insurer; that maintaining a field for playing baseball is not “dangerous in itself or unlawful”; and that it was for the jury to determine whether playing ball under all the circumstances existing rendered the adjacent street “unsafe and dangerous” as these terms were defined.

In Brown v. Milwaukee Terminal Co., 199 Wis. 575, 224 N.W. 748, 749,227 N.W. 385, this court held that maintaining a tree on the street between the sidewalk and the curb line constituted a nuisance when through decay it became a menace to persons traveling the street and rendered the owner of the adjacent premises liable for injuries sustained to a traveler through its falling, and on a verdict finding that the tree “was dangerous and unsafe to passersby” rendered judgment for the plaintiff.

Under this decision and the court's instruction in the instant case and the jury's finding that playing baseball on the field rendered the walk “unsafe and dangerous” to pedestrians, maintaining the field under the circumstances existing constituted a nuisance.

The trial court granted judgment on the double-barrelled theory that the jury's finding (1) was a finding of “negligence” and of “nuisance.” In the view we take of the case we need only consider the nuisance theory.

The first Wisconsin case involving the question of a municipality's liability for creating a nuisance that we have noticed is Harper v. Milwaukee, 30 Wis. 365. It is there stated, page 372, “that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses, and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible.”

Perhaps the next case for consideration is Little v. Madison, 42 Wis. 643, 652,24 Am.Rep. 435, wherein it was held on demurrer to the complaint for insufficiency that licensing an exhibition of two bears on a city street whereby plaintiff's team was frightened and injury to his intestate resulted imposed liability on the city for creating the existence of a public nuisance on a public street. This case after trial again came before the court in 49 Wis. 605, 6 N.W. 249,35 Am.Rep. 793. It appeared on the trial that the license was not to exhibit in the public street, as the court had construed the complaint to mean in the first case, but to “give a bear show,” and it was held that this implied that the show was to be given in a “suitable place” and that the negligence of the city police in not seeing that the show was given in such a place and not on the public streets would not impose liability. The opinion left undisturbed the first pronouncement that to license an exhibition on the public street imposed liability if in fact the exhibition created such danger as to constitute a public nuisance. The case was sent back for a new trial. That the order was not for dismissal instead of a new trial is explainable only on the theory that if exhibiting the bears on a “private lot” would create danger to persons on the adjacent street and thereby create a nuisance in fact the city would be liable notwithstanding the implication of the general terms of the license. The appellant contends that this case is in effect overruled by Schultz v. Milwaukee, 49 Wis. 254, 5 N.W. 342, and Hubbell v. Viroqua, 67 Wis. 343, 30 N.W. 847,58 Am.Rep. 866, but these cases are distinguished and leave the Little case unaffected.

Hughes v. Fond du Lac, 73 Wis. 380, 41 N.W. 407, held the city liable for leaving a large roller being used in repairing the city streets standing on a street whereby the plaintiff's team became frightened and ran away and caused injury to him, on the ground that so leaving the roller created a public nuisance. This case and Little v. Madison, supra, are either both or one or the other recognized as correctly stating the law in Morrison v. Eau Claire, 115 Wis. 538, 92 N.W. 280,95 Am.St.Rep. 955;Hogan v. Beloit, 175 Wis. 199, 207, 184 N.W. 687;Bruhnke v. La Crosse, 155 Wis. 485, 487, 144 N.W. 1100, 50 L.R.A., N.S., 1147; Jensen v. Oconto Falls, 186 Wis. 386, 391, 202 N.W. 676; and Bernstein v. Milwaukee, 158 Wis. 576, 578, 149 N.W. 382, L.R.A.1915C, 435. In the latter case it is expressly stated that the governmental function rule does not apply where the municipality is maintaining a public nuisance. In Crowley v. Clark County, 219 Wis. 76, 81, 261 N.W. 221, the writer of the opinion states that the Hughes case, supra, might better have been rested on sec. 81.15, Stats. for leaving an obstruction on a street for an unreasonable length of time and thereby rendering the street unsafe for travel. But if so, the Hughes case and the Little case were both decided on the hypotheses that the thing involved constituted a public nuisance; and that maintenance of such nuisance imposes liability for injuries caused thereby.

Another line of Wisconsin cases is to the point that a city is liable for injury resulting from its construction in the public streets that are of a nature such as to constitute a nuisance. The rule is stated in Folk v. Milwaukee, 108 Wis. 359, 364, 84 N.W. 420, 421, as follows: “There is another principle frequently approved by this court, namely, that a municipal corporation may not construct or maintain a nuisance in the street * * * to the damage of another.” Gilluly v. Madison, 63 Wis. 518, 24 N.W. 137,53 Am.Rep. 299; Hughes v. Fond du Lac, supra, and Schroeder v. Baraboo, 93 Wis. 95, 67 N.W. 27, are cited to this point. In the Gilluly and Schroeder cases, the structures are not expressly called “nuisances,” ...