Robinson v. Rohr

• Decision Date: 04 December 1888
• Parties: ROBINSON v. ROHR ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 436

40 N.W. 668

ROBINSON

v.ROHR ET AL.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Jefferson county.

Action for damages for personal injuries by Ada H. Robinson against William H. Rohr and six others, street commissioners of the city of Watertown, and said city. The court directed a verdict for all the defendants except the city. Plaintiff appeals.Harlow Pease, for appellant.

C. H. Gardner and G. W. Bird, for respondents.

ORTON, J.

The above defendant and six others are charged in the complaint as follows: They were constructing and repairing stone piers and abutments under the Main-Street bridge over the Rock river, in the city of Watertown, and there was standing in an upright position on said bridge a large and heavy hoisting-machine, known as a “derrick,” which was placed there by them, and before that day had been used by them in repairing and constructing said piers and abutments. The plaintiff was walking along upon that portion of the bridge which was set apart for persons traveling on foot, and through the carelessness and negligence of the defendants, their agents, servants, and employes, said derrick was allowed to fall across and upon said bridge, and upon the plaintiff, while she was walking along as a traveler on said highway bridge, and without fault on her part; whereby she was greatly hurt, bruised, and injured. The defendants by answer admit that the piers and abutments of said bridge were being constructed and repaired, but deny that they were constructing or repairing the same, and deny that it was through their fault, or that of their agents, servants, or employes, that the derrick fell upon the plaintiff, and that she was greatly injured thereby, or that she received any injuries by reason of their negligence, or that of their agents, servants, and employes, and deny that the plaintiff was without fault, and aver that her own negligence contributed to her injury. They allege that said bridge had been out of repair for some time, and needed repair and reconstruction; and that as the board of street commissioners of said city, in its collective and legislative capacity, had duly let the work of repairing and constructing said piers and abutments to competent persons to do that work, and the said persons were then engaged in the due prosecution of said work, exercising due and proper caution in operating the said derrick. The facts in respect to said mason-work on the piers and abutments, stated in respondents' brief and proved on the trial, were as follows: The clerk of the city was directed by the defendants, in accordance with the requirement of section 3 of subchapter 9 of the city charter, in respect to all such work, to advertise for proposals for doing the mason-work, and furnishing materials for the bridge according to the plans and specifications adopted by them as the board of street commissioners, to be received up to a certain date; and on that day the proposal of one Charles Baxter for doing said work, and furnishing materials, was accepted by them, and they directed a contract to be entered into with him according to said proposal, and that the said work be let to him, he being the lowest bidder for the same. But before any contract was entered into with him, and before, as they ascertained, he had acquired any rights in the same, by resolution of the defendants as such board the whole matter was left open and undisposed of for their future action. Their committee, to whom the matter had been referred, reported plans and specifications of said mason-work and materials, and recommended that said work and furnishing materials be done by themselves, under the supervision of their committee on streets and bridges, and that a superintendent be appointed, and said resolution was accordingly adopted by them. In this manner the work upon said bridge commenced, and was carried on by the defendants, through their superintendent, and other persons employed by them, and under the supervision of their committee, up to the time the plaintiff was injured by the falling of the derrick by the negligence of their servants. No contract was ever let to any one to do the said work, or to furnish materials for the same, but the defendants did the work, instead of a contractor, obtained according to the requirement of the charter as the lowest bidder for the same. On these facts the circuit court directed a verdict for the defendants, except the city of Watertown.

It will be seen that the facts proved do not support the answer as to letting the work to other persons. It may be said here that all the authorities cited by the learned counsel of the respondents have application only to the case made by the answer, and in no respect to that made by the facts proved. The same elementary authorities cited by them make the very distinction which here exists between the answer and the proofs. The board of street commissioners, when they determined upon the work, and adopted the plans and specifications of it, acted as public officers, exercising judicial and legislative power, and they are not amenable to any one except the public for any errors,negligence, or mere misfeasance in the matters within their jurisdiction. In this case they are not charged with any dereliction in these respects. But when, after adopting the plans and specifications, they undertake to carry them out practically, and do the work themselves, and employ agents and servants to execute the plans and specifications manually, then, if they are acting as officers at all, they are merely ministerial officers, and not judicial or legislative, and, according to the same authorities, are liable to third persons for their negligence or misfeasance, or, as the authorities say, as public officers they acted in a ministerial capacity, and are therefore liable. Cooley, Torts, 339-376. If, as public officers, they owe only a duty to the public, and are not liable to persons, yet, if they so act as to owe a duty to individuals, then their negligence therein is an...