Weiss v. Holman

• Decision Date: 05 June 1973
• Docket Number: No. 68,68
• Citation: 207 N.W.2d 660,58 Wis.2d 608
• Parties: Michael WEISS, a minor, by his gdn. ad litem, Ronald L. Piette, Plaintiff-Respondent, v. James HOLMAN et al., Defendants-Respondents, Wis. Electric Power Co., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 660

207 N.W.2d 660

58 Wis.2d 608

Michael WEISS, a minor, by his gdn. ad litem, Ronald L.

Piette, Plaintiff-Respondent, v. James HOLMAN et al., Defendants-Respondents, Wis. Electric Power Co., Defendant-Appellant.

No. 68.

Supreme Court of Wisconsin.

June 5, 1973.

Prosser, Wiedabach, Koppa, Lane & Quale, Milwaukee, George W. Greene and Rick T. Calvelli, Milwaukee, of counsel, for appellant.

Ronald L. Piette, Milwaukee, for plaintiffs-respondents.

WILKIE, Justice.

One issue is raised by this appeal: Did the trial court err in ruling that the minor plaintiff's complaint sufficiently states a cause of action based upon the violation of statute and upon common law negligence?

The power company essentially alleges plaintiff's complaint fails to state a cause of action sounding either in per se negligence arising from the violation of a safety statute, or common law negligence in the placement of a power pole four feet from the roadway. The following oft reiterated rules relating to review of orders overruling or sustaining demurrers are applicable: (1) Pleadings are to be liberally construed with a view to substantial justice between the parties and are entitled to all reasonable inferences in favor of the pleadings which may be drawn from the facts pleaded; ¹ (2) all material well- pleaded facts are to be taken as true; ² (3) in making this review this court is not concerned with the extent to which the parties will be able to prove their allegations at trial. ³

A. Safety Statute Cause of Action. Paragraph 32(c) of the complaint alleges the utility company 'obstructed or incommoded the public use of the highway' by the placement of its pole and thereby violated sec. 182.017(2), Stats. ⁴ The power company contends that this statute must not be read in a vacuum but that it is explained by sec. 340.01(22), which defines 'highway' as that portion of the public way open to the public 'for the purposes of vehicular travel.' According to appellant, its power pole, located four feet from the traveled portion of West Mill Road, did not obstruct or incommode the highway and, hence, cannot be said to have violated sec. 182.017(2).

Sec. 182.017(1), Stats., permits domestic utilities to construct transmission lines and systems 'in, across or beneath' public highways subject only to the reasonable regulations of cities or villages through which such lines or systems pass. ⁵ Sub. (2) of this statute provides the following qualification:

'(2) Not to Obstruct Public Use. But no such line or system or any appurtenance thereto shall at any time obstruct or incommode the public use of any highway, bridge, stream or body of water.' (Emphasis added.) ⁶

Whether this statute is of that class of statutes the violation of which results in per se negligence was extensively considered by this court in Gray v. Wisconsin Telephone Co. ⁷ In Gray, a case involving injuries sustained by a motorcyclist who struck a sagging telephone pole guy wire while on the highway, the court concluded that the statutory command of sec. 182.017 was directed 'to the construction of the line and its appurtenances and not to inspection and maintenance.' ⁸ According to the court, the proper standard of care was not per se negligence arising from the violation of a safety statute but, rather, ordinary care in the inspection and maintenance of the defendant's lines and appurtenances. While this court, in Gary, did not specifically so hold, it implied that a violation of the statute would have occurred had the telephone wire been constructed in a negligent manner:

'. . . The state of the record is such that we must conclude that the construction of the line and its appurtenances did not violate the statute.' ⁹

Lacking specific exclusion or inclusion of sec. 182.017, Stats., in the class of cases in which the statutory violation results in per se negligence, the general rules relating thereto must be examined.

The determination of whether the violation of a statute gives rise to negligence per se has been considered by this court on several occasions. ¹⁰ In Meihost v. Meihost it was held:

'(W)here a statute is designed to protect a class of persons from a particular type of harm, a violation of the statute which results in that type of harm to someone in the protected class constitutes negligence per se.' ¹¹

Thus, the critical question is 'whether the purpose of the ordinance was to protect the party seeking to invoke it, i.e., was he within the class of persons that the legislature plainly intended to protect.' ¹² In Delaney v. Supreme Investment Co. we held that this court must be convinced beyond any reasonable doubt that the legislature's purpose in adopting the statute was that alleged by the injured plaintiff. ¹³

Applied to the instant case, it is clear sec. 182.017(2), Stats., is a safety statute, the violation of which results in per se negligence. In addition to the implication left by this court in Gray v. Wisconsin Telephone Co., ¹⁴ logic dictates that a statute which prohibits any obstructing or incommoding of the public use of any highway can have but one purpose--that of preventing injury, either direct injury by striking a misplaced pole or appurtenance or indirect injury in being forced to leave the highway in order to continue one's journey. While both words give rise to connotations of convenience, it would seem more likely that the legislature in this enactment, which was first adopted in 1858, ¹⁵ would be more concerned with personal safety.

We conclude, therefore, that this statute, when violated, gives rise to per se negligence, and the instant plaintiff, a sojourner along a public highway, is within that class of persons sought to be protected. But since in view of Gray, such per se negligence does not apply to the maintenance of a utility pole or other appurtenance, but only to its initial construction, we must determine whether the utility company may have violated its statutory duty not to obstruct or incommode the highway in the initial placement of its power pole. The crucial question is the correct meaning of the word 'highway.'

In this connection, sec. 182.017(2), Stats., which describes the duty of a utility, is first supplemented by sec. 340.01(22) of the Vehicle Code which, in its definitions of words and phrases, states:

"Highway' means all public ways and thoroughfares and bridges on the same.

It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel . . .' (Emphasis added.) ¹⁶

The power company argues that its power pole, constructed a distance of four feet from the traveled portion of West Mill Road, did not obstruct legitimate vehicular use and did not, therefore, violate sec. 182.017.

Cognizance must also be taken of the following Legislative Council note of 1957 regarding such definition:

'This definition is important in setting the scope of the entire vehicle code because most provisions of chs. 341 to 349 apply only upon 'highways.' The new definition clarifies in various respects the definition in present § 85.10(21). The present definition does not state that highway means the entire width between the boundary lines yet that clearly is the sense in which it is commonly used and understood. The term 'highway' includes the entire right of way as distinguished from the 'roadway' which is only a limited part of the highway. . . .' (Emphasis added.) ¹⁷

Thus, although the statutory wording itself is vague because it speaks in terms of vehicular travel as a matter of right without defining the perimeter of such travel, the committee note makes it clear that the legislative intent was to give 'highway' a broader scope than 'roadway' which expressly excludes the berm or shoulder. ¹⁸

The Vehicle Code's definition of 'highway' can be used to explain the ambiguous provisions of sec. 182.017(2), Stats. It has long been settled in this state that statutes in pari materia, i.e., dealing with the same subject matter, must be read together and harmonized if possible. ¹⁹ Sec. 182.017(2) is concerned with the safety of those traveling upon highways who are subject to injury should a utility pole or similar appurtenance be placed on the highway. The Wisconsin Vehicle Code is concerned with the overall safety and well being of persons traveling upon the state's highways. We conclude that the precise definition of 'highway' found in the Vehicle Code applies to sec. 182.017(2), and defines the usage of 'highway' therein. 'Highway' includes the 'roadway,' which is that portion of the road usually used for vehicular travel, and the shoulder of such improved surface where one exists.

In the present complaint it is alleged that defendant's power pole was placed 'within four feet of the West Mill Road roadway' and 'too close to the traveled roadway;' that by virtue of such placement the utility '(v)iolated Section 182.017(2) Wis.Stats. in that the pole obstructed or incommoded the public use of the highway, West Mill Road.' It is also alleged the pole was located 'on public property within the highway right of way.' While the complaint does not state whether or not a highway shoulder existed or whether the pole was located upon such shoulder, it does state the pole was within four feet of the 'traveled roadway.' While this court must, of course, confine itself to the facts stated in the complaint, ²⁰ it has consistently adhered to the rule of liberal construction which permits reasonable inferences to be drawn from the pleaded facts. ²¹ It seems reasonable to infer from the instant complaint that a highway shoulder did exist alongside the traveled portion of West Mill Road and that it was at least four feet in width. ²² Such being the case, plaintiff-respondent has stated a cause of action against defendant-appellant for the breach of its statutory duty not to obstruct or incommode the public use of any highway.

B....