Toutloff v. City of Green Bay

• Decision Date: 26 November 1895
• Parties: TOUTLOFF v. CITY OF GREEN BAY.
• Court: Wisconsin Supreme Court

91 Wis. 490

65 N.W. 168

TOUTLOFF

v.CITY OF GREEN BAY.

Supreme Court of Wisconsin.

Nov. 26, 1895.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Pauline Toutloff against the city of Green Bay and another. Defendant city moved for a stay of proceedings till defendant Froncee should be served with the summons and one Schroeder brought in as a defendant. The motion was denied, and the defendant city appeals. Affirmed.

The action was brought to recover damages for injuries suffered by a fall upon a defective sidewalk, upon one of the streets of the defendant city, in front of the lot of one Froncee. The sidewalk was charged to have become out of repair. Froncee was named as a codefendant in the summons, and complaint, but was never served. The defendant city, by answer, alleged that Froncee, the owner, and one Schroeder, the occupant, of the lot aforesaid, were charged with the duty of keeping the sidewalk in question in repair, and were primarily liable for the plaintiff's injury, if she was injured, and upon the answer, and an affidavit showing such ownership and occupancy, moved for a stay of proceedings until said Froncee and Schroeder should be made parties to the action, and served with process. The motion was denied, and the city appealed.Ellis & Merrill, for appellant.

Cady & Huntington, for respondent.

WINSLOW, J. (after stating the facts).

The question presented in this case is whether, under the charter of the city of Green Bay, the owner of a lot in that city is liable to a passer-by for injuries resulting from a fall occasioned by a defective and worn-out sidewalk in front of such lot. The question is whether the lot owner is liable for mere failure to repair, not whether he is liable for active negligence in placing an obstruction or making an excavation in the street or sidewalk. Therefore, the cases which have been decided in this court, sustaining the liability of lot owners or others for injuries caused by obstructions or excavations made by them in the streets, can have little or no application here. Such are the cases of McFarlane v. City of Milwaukee, 51 Wis. 691, 8 N. W. 728;Raymond v. City of Sheboygan, 70 Wis. 318, 35 N. W. 540;Papworth v. City of Milwaukee, 64 Wis. 389, 25 N. W. 431;Kollock v. City of Madison, 84 Wis. 458, 54 N. W. 725. The liability in these cases is founded upon acts of affirmative negligence, and is a common-law liability, existing independent of any statute. There is no common-law liability here, because it is settled, in this state, that it is not the duty of the lot owner, at common law, to keep the street or sidewalk in repair. Cooper v. Village of Waterloo, 88 Wis. 433, 60 N. W. 714. If there be any liability, therefore, in this case, it must be by reason of some statute. It has been recently decided that section 1339b, Sanb. & B. Ann. St. (Laws 1889, c. 471, § 1), creates no new liability or right of action. It “merely regulates the remedy for rights of action otherwise created.” Cooper v. Village of Waterloo, supra. It is not claimed that there is any other general state law which creates a liability, but that it is created by the charter of the city of Green Bay (Laws 1882, c. 169). This contention necessitates a critical examination of that charter. Starting with the general undoubted proposition that every city in the state is charged with the duty of keeping its streets and sidewalks in repair, and is responsible for negligence in discharge of that duty, we turn to the charter in question, and find very full authority given to the city to enable it to discharge this duty at the expense of the lot owners. By chapter 4 it is given authority to control, regulate, repair, and clear streets and sidewalks. By chapter 6 it is provided, in substance: First, that the paving of streets and the building and rebuilding of sidewalks shall be chargeable to the abutting lots; second, that the expense of keeping sidewalks and gutters in repair shall be chargeable to the abutting lots, “and the duty of always keeping the sidewalks on or adjacent to the lots and premises of any person in safe condition and good repair is hereby expressly enjoined and imposed upon all owners or occupants of said lots and premises”; third, that the street superintendent shall make frequent inspection of all sidewalks and pavements in the city, and if he find a sidewalk out of repair, the expense of repairing which shall not exceed $5, he shall immediately repair it, and if repairs costing more than $5 are necessary, he shall notify the lot owner to repair, and if it be not repaired by the lot owner within 24 hours he shall make repairs himself, and in either event he shall make report of the expense to the city clerk, who shall present the bill to the lot owner for payment, and, if not paid, it shall be levied as a special tax upon the lot, and collected with other city taxes; fourth, that all the work shall be done under the supervision of the street superintendent, unless the common council shall otherwise direct. These are all the provisions bearing directly on repairs of existing sidewalks. New sidewalks are to be built upon...