Schultz v. City of Milwaukee

• Decision Date: 20 April 1880
• Citation: 5 N.W. 342,49 Wis. 254
• Parties: SCHULTZ v. THE CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

49 Wis. 254

5 N.W. 342

SCHULTZ

v.THE CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed April 20, 1880.

Appeal from circuit court, Milwaukee county.

Appeal from an order overruling a demurrer to the complaint. The action is to recover damages for injuries received by the plaintiff while passing along one of the public streets of the defendant city. After alleging that the city is a corporation, having authority to keep the public streets therein in repair, to remove nuisances therefrom, and to prevent any improper use thereof, and that Poplar, Seventh and Eighth streets, in said city, are highways dedicated to and used by the public as such, the complaint proceeds as follows:

“And this plaintiff further shows that, on or about the fifth day of January, 1879, and on other days and at other times prior thereto, the defendant knowingly, negligently and carelessly permitted and allowed and sactioned certain disorderly fellows, and idle persons, and boys and youths to encumber and obstruct said Poplar street, and Seventh and Eighth streets aforesaid, where they cross and intersect said streets, by practicing and indulging in certain sports, plays and amusements, usually called bobbing or sliding down hill.

“That said sports, plays, diversions and amusements consisted in a large number of boys and youths, and young persons lacking discretion, assembling and congregating together upon said Poplar street, and connecting together two or more small sleds by a long board and boards, and great numbers of boys and youths getting thereon, and sitting thereon, and letting said structure run furiously and rapidly down the steep hill which is in Poplar street, the summit of which hill is about between Ninth and Tenth streets in said city, and the foot of which hill was and is about between Fifth and Sixth streets of said city, all of which aforesaid streets are public streets and public highways.

And this plaintiff further shows, that said boys and youths, and other persons, used said Poplar street as aforesaid, for the purpose aforesaid, and obstructed the said street by such use thereof many days prior to the fifth day of January, A. D. 1879. and many times in the day, and so obstructed said street, and the streets and highways crossing and intersecting therewith, above named, as to hinder and prevent ordinary travel and passage over and upon the same; and such use of said Poplar street, in the manner aforesaid, became and was a public nuisance, to the knowledge of the defendant, its officers, servants, agents and employes, and the defendant negligently and carelessly allowed and permitted said unlawful use and obstruction of said streets to remain and continue from day to day, and many times in the same day, prior to and at the time last aforesaid, and such use of said street and streets was calculated to and did obstruct and encumber the same, and to endanger and did endanger the lives and property of persons traveling upon the same.

“That prior to the time named aforesaid the said defendant, its servants, agents and officers, did license boys and girls to slide down hill in said city; and that, under such license and permission, the young men, boys and youths in the city of Milwaukee did use the streets of said city, and particularly Poplar street in said city, to slide down hill with sleds, and other structures used by them to slide down hill; and the plaintiff avers that the defendant well knew the dangerous character of such parties to slide down hill, and that the lives and persons of people would be jeopardized thereby.

And this plaintiff further shows that on or about the said fifth day of January, 1879, the streets aforesaid of the city of Milwaukee, and particularly Poplar street in said city, was covered with ice and snow, and was very smooth and slippery; that there is a hill on Poplar street extending from about the vicinity of Sixth street to about Tenth street in said city, and the ascent from Sixth street to Tenth street is very steep and abrupt, and the descent from Tenth street downward is at a very rapid...