APPEAL
from the Circuit Court for Milwaukee County.
Action
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 sanctioned 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 street
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 employees; 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 decline; that on the day
aforesaid a large number of young men and boys had been and
were engaged in sliding down the hill on said street from
Tenth street downwards, on sleds, hand-sleds, bobs and
bob-sleds, and other structures for sport, amusement and
diversion, to the knowledge and with the license of the
defendant."
It is
further alleged that on the day aforesaid, as the plaintiff
was lawfully crossing Poplar street, in the vicinity of
Seventh street, with due care, he was run against by one of
the structures above described, running down Poplar street
with great and uncontrollable speed, carrying about thirty
boys and youths seated thereon, and received the injuries
complained of.
Defendant
demurred to the complaint as not stating a cause of action
against the city; and appealed from an order overruling the
demurrer.
Order
reversed and cause remanded.
D. H.
Johnson, City Attorney, for the appellant, argued, 1. That a
municipal corporation is not liable for any failure, mistake
or even wrong committed by its legislative department. Dillon
on M. C., § 39, and cases cited in the notes. 2. That
such a corporation is not liable for any failure on the part
of its police department. Dillon, § 773, and notes. 3.
That coasting or bobbing in a highway is not an obstruction
or defect in the highway, for which a city or town is liable
under the statute. Ray v. Manchester, 46 N. H., 59;
Hutchinson v. Concord, 41 Vt., 271. 4. That even if
this were otherwise, plaintiff could not recover in this
action, because he had not exhausted his remedy against the
persons by whose wrongful act the obstruction was caused
(Laws of 1874, ch. 184, subch. XX, sec. 1), and because no
notice of the damage, etc., had been given as required by
sec. 1339, R. S.
For the
respondent, there was a brief by Austin & Runkel, and oral
argument by Mr. Austin:
1. In
the absence of any express statute, municipal corporations
having the powers ordinarily conferred upon them respecting
streets and sidewalks within their limits, owe the public a
duty to keep them in a safe condition for use in the usual
modes of travel, and are liable in a civil action for special
injuries resulting from neglect of this duty. Allbrittin v....
