Stephani v. City of Manitowoc

• Decision Date: 05 February 1895
• Citation: 62 N.W. 176,89 Wis. 467
• Parties: STEPHANI v. CITY OF MANITOWOC.
• Court: Wisconsin Supreme Court

89 Wis. 467

62 N.W. 176

STEPHANI

v.CITY OF MANITOWOC.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from circuit court, Manitowoc county; N. S. Gilson, Judge.

Action by Wiliam Stephani, administrator, against the city of Manitowoc, to recover for death of his intestate. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

This is an appeal from an order overruling a demurrer to the complaint. The complaint shows that the city of Manitowoc is divided into two parts by the Manitowoc river, a navigable stream, which flows through it. The city has erected and maintains a drawbridge across that stream, for the purpose of making a highway connection between the two parts of the city. This constitutes one of the principally traveled highways of the city. The city has provided no guards or barriers to prevent people from walking off the bridge, when the draw is open; nor has it provided lights to light the bridge in the nighttime. The plaintiff's decedent, while passing over the bridge, on a dark night, without negligence on her part, fell into the river, through the open draw, and was drowned. There was a demurrer to the complaint, which was overruled, and the defendant appealed.J. S. Anderson, for appellant.

Schmitz & Kirwan, for respondent.

NEWMAN, J. (after stating the facts).

It is claimed that the complaint is demurrable on two grounds: (1) That it does not state facts which show that the bridge was insufficient; and (2) that it does show, affirmatively, that the negligence, if any, which caused the death of the plaintiff's decedent, was the negligence of the bridge tender, who, being ultimately liable, should have been joined as a defendant in the action. No doubt it was the duty of the defendant to make its drawbridge reasonably safe and sufficient for the safe passage of travelers upon it, both by day and in the nighttime. It was built for a drawbridge. It was contemplated that the draw would often be open at times when travelers would be crossing upon the bridge. It is in relation to this function that its sufficiency is to be considered. If it was not reasonably safe, as a drawbridge, without some barrier to warn travelers and so protect them from falling from the bridge when the draw was open, then the city was in fault in not having provided such a barrier; or, if it was not reasonably safe and sufficient as a drawbridge, in the nighttime, without being lighted, then it was the duty of the city to light it in the nighttime,--for the city had not completely done its duty to the...