Wisconsin Power & Light Com. v. Columbia County

• Decision Date: 30 October 1962
• Citation: 117 N.W.2d 597,18 Wis.2d 39
• Parties: WISCONSIN POWER AND LIGHT COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. COLUMBIA COUNTY, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 597

117 N.W.2d 597

18 Wis.2d 39

WISCONSIN POWER AND LIGHT COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. COLUMBIA COUNTY, a municipal corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 30, 1962.

Petersen, Sutherland, Axley & Brynelson, James C. Herrick, Griffin Dorschel, Madison, for appellant.

Howard W. Latton and Arno J. Miller, Sp. Dist. Attys., Portage, Donald Hamm, Wisconsin Dells, for respondent

HALLOWS, Justice.

The first question on this appeal is whether the defendant was negligent in constructing the road. Plaintiff contends the defendant proceeded at its peril after it had knowledge of the mounding and possible damage to the tower by the subterranean lateral forces of the marsh set in motion by the manner in which the road was being constructed. Specifically it is claimed the defendant was negligent in building the road by trial and error and by the 'blanketing' method of depositing fill on top of the swamp surface when it knew such method of construction would create lateral pressure in the marsh which would damage the tower, and in failing to seek expert advice or to make tests of the nature of the marsh before proceeding with the construction of the road as relocated.

Constructing the road by the defendant was not an extrahazardous activity so as to place absolute liability upon the defendant. Wisconsin Power & Light Co. v. Columbia County, supra. Defendant in constructing the road was under the duty to use ordinary care which must be determined in the light of existing circumstances. Mondl v. F. W. Woolworth Co. (1961), 12 Wis.2d 571, 107 N.W.2d 472. The possibility of harm to the plaintiff's tower was foreseen by the defendant but the foreseeability of possible harm is not enough to constitute negligence. Harm must be reasonably foreseen as probable by a person of ordinary prudence under like circumstances. Mondl v. F. W. Woolworth Co., supra; Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372; Barnes v. Murray (1943), 243 Wis. 297, 10 N.W.2d 123. To constitute negligence, not only must the act involve a risk which the actor realizes or should realize but the risk must be unreasonable. The test of unreasonableness is well stated in 2 Restatement of Torts, page 785, paragraph 291, as follows:

'1. Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.'

The trial court found the defendant adopted the means of accomplishing the relocation of the road in the form and manner employed by like agencies in constructing similar types of highways; the defendant complied with the applicable standard of care in constructing the road and any damage to the plaintiff's tower could not have been reasonably foreseen or anticipated by the defendant. Unless these findings are against the great weight and the clear preponderance of the evidence, this court must affirm.

In 1954 there were two generally employed methods of road constructions in swampy areas, either blanketing the surface of the marsh with road material and building up the road bed as was done in this case, or excavating all or part of the contents of the swamp where the road was to be constructed and backfilling. For local roads of light traffic count, intended to be low-cost roads, as the contemplated road was, the blanketing method was the usual and customary method. On high traffic count roads for state highways the more expensive excavating and backfilling method was used. The method used by the defendant was in conformity with the customary method used by the counties of its size in building the contemplated road over a marsh and would exclude an inference of negligence. Bandekow v. Chicago, B. & Q. Ry. Co. (1908), 136 Wis. 341, 117 N.W. 812. Choice of using the blanketing method because it was the least expensive means of building this road in itself would not be negligence. One is not required to use the most costly method to accomplish an end if the cost of that method would be prohibitive. Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322. The assistant chief engineer of the plaintiff realized the cost of the excavation and backfill method would be prohibitive and did not suggest it to the county.

The mounding on the side of the road bed would not...