Schroeder v. City of Baraboo

• Decision Date: 14 April 1896
• Citation: 93 Wis. 95,67 N.W. 27
• Parties: SCHROEDER v. CITY OF BARABOO.
• Court: Wisconsin Supreme Court

93 Wis. 95

67 N.W. 27

SCHROEDER

v.CITY OF BARABOO.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action by H. F. Schroeder against the city of Baraboo for damages to property. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Action for damages alleged to have been caused to plaintiff's property by negligence on the part of the defendant. Plaintiff owned lot 12, block 32, city of Baraboo; being the corner lot bounded by Beech street on the east, and by Second street on the south. There was a building on the southeast corner of the lot. The lower or basement story was about 4 feet below the surface of the street, with an area way on the east side, between the building and the street line, 8 feet wide; extending from the southeast corner of the lot north about 40 feet, and west 12 feet. On the east side of the lot there was a stone wall. The surface of the lot at the place the building was located was lower than the surface of the ground, for a considerable distance east and west. Some years previous to the injury to plaintiff's property complained of, there was a drain constructed from a point several blocks north of plaintiff's property down to the block in which the lot was situated, in a southeasterly direction, across the corner of such block, and across the northeast corner of the lot in question, to and into Beech street, and down Beech street, opposite such lot, to Second street; thence through a culvert across and under Second street; thence southerly to a ravine; thence down such ravine to the Baraboo river. There was evidence tending to show that such drain was constructed in part by the public corporation to which the city of Baraboo succeeded. There were lawfully connected with it a number of privy vaults. After the maintenance of this drain as above set forth for a term of years, and after the organization of the defendant city, and before the occasion complained of, such city adopted a sewerage system; and, in the process of the construction of such system, there was evidence tending to show, the outlet of the drain at the point below plaintiff's property was walled up. In the new sewerage system a catch-basin was located at the southeast corner of plaintiff's lot, to take the surface water that might flow south on the west side of Beech street, and east on the north side of Second street, and the water that might naturally settle at that point on account of the topography of the surrounding country At the time in question there was a severe rain storm, which taxed the capacity of such sewer to carry off the water that naturally flowed in the direction of the catch-basin mentioned, and there was evidence tending to show that by reason of such unusual fall of water, and the incapacity of the catch-basin on that account, the water overflowed into plaintiff's lot. There was also considerable evidence tending to show that the water from the surface at a point a considerable distance above plaintiff's property flowed into the old drain, and, by reason of its having been walled up at the outlet below plaintiff's property as above stated, water backed up and accumulated in the drain till the pressure became sufficiently great to cause the water to burst through the bank between such drain and plaintiff's lot on Beech street into the area way; filling up the same to the depth of several feet with water, and with a considerable amount of filthy sewage, thereby damaging plaintiff. At the close of the plaintiff's testimony, defendant's counsel moved the court for a nonsuit, which motion was granted. Judgment was thereupon entered in defendant's favor for costs, and plaintiff appealed.Herman Grotophorst, for appellant.

R. D. Evans, for respondent.

MARSHALL, J. (after stating the facts).

Was the nonsuit properly granted? That is the sole question for consideration, and it turns on whether, giving plaintiff's evidence the most favorable construction it will reasonably bear, including all reasonable inferences arising therefrom, and assuming that it establishes all the facts it tends to prove, it will support a judgment in plaintiff's favor. Spensley v. Insurance Co., 54 Wis. 433, 11 N. W. 894. In applying this rule, we must bear in mind that the evidence tends to show that...