Green v. Town of Bridge Creek

38 Wis. 449 | Wis. | 1875

Cole, J.

For the purposes of this case it may he assumed that the road known as the old pinery road, down the ravine and across Bridge Creek at the ford, had become a public highway by user or prescription. It may also be conceded that the road across the crown of the hill, which turned back into the main track, and which the evidence showed - had been traveled over for more than ten years, was likewise a highway by user. But still the town rests its defense upon the ground that the bridge where the accident occurred was no part of either of these highways, and that it was under no obligation to keep it in suitable repair. Whether, under the circumstances, it was the duty of the town to keep the bridge in sufficient repair, or, if not, whether it should have employed some means to warn persons of its dangerous condition, are questions presented on the record and ably discussed on the argument.

The bridge in question was built in December, 1869, by persons living in the adjoining town of Lincoln, as it appears, for their own accommodation in crossing the creek an that point. There is no evidence that the authorities of the defendant town have ever adopted the bridge as belonging to the town, nor have they exercised any control over it, or treated it as constituting a part of any highwa}r of the town. The bridge is ten rods distant from the nearest point in the highway leading oyer the crown of the hill, and seventeen rods distant from the nearest approach of the old pinery road. The ford which was and is the usual crossing of the old pinery road, is up the creek from the bridge over forty rods by a direct line. No travel ever crossed the creek where this bridge, called the Murphy bridge, was erected, except for less than "two and one-half years while it existed; and after its destruction the travel all returned to the old ford. The evidence shows chat the road bv the old ford continued open while the Murphy bridge existed, and more or less travel continued to cross there, though the crossing was difficult and at times of high water even dangerous. But there was another highway leading from Eau Claire to the pineries in the same general direction as the old pinery road, and provided with a bridge across the creek at the dalles, about a mile above the Murphy bridge; and this road led to Sugartown, where the plaintiff resided. The old pinery road generally passed through a sandy, unimproved country ; and in places the travel diverged from, and again returned to, the old track. The plaintiff was familiar with the country, and was acquainted with the different roads and crossings. The water was high in the creek when the accident happened, though the road by the old ford was passable, the ford being actually crossed the next day by George S. Hyde, one of the plaintiff’s witnesses, with his wagon and team. After the Murphy bridge was built, the main travel crossed it, and it shortened the distance to go that way rather than by the old ford. The bridge was only five rods east of the line between the towns of Lincoln and Bridge Creek, and the authorities of neither town had taken any means to prevent or warn travelers against crossing it. These are the leading facts upon which the liability of the defendant is to be determined.

The first question to be considered is, Was it the duty of the defendant to keep the Murphy bridge, built in the manner indicated, in a safe condition for the passage of the public travel over it, and is it liable for an injury which occurred in consequence of its being out of repair? The statute imposes upon a town the duty of keeping all public highways and bridges within its limits in proper repair, and makes it liable for any damages which shall happen to any person, or to his property, by reason of their insufficiency. Sec. 120, ch. 19, R. S. This statute obviously refers to the public highways of the town in fact, or highways which have become such in some way known to the law, and which the town is bound to repair, and the bridges situated on such highways constituting a part thereof. The liability of the town does not always depend upon the existence of a bridge or highway de jure, as was decided in Houfe v. The Town of Fulton, 34 Wis., 608. In that case the chief j ustice remarks that the de facto existence of a highway or bridge, as where a town has maintained or recognized a bridge or highway as belonging to it and under its control, will suffice to charge the town with the duty of keeping it in a suitable and safe condition. In the Houfe case, the bridge was built across Rock river, a navigable stream, without the permission of the legislature, and the town sought to avoid its liability to keep it in proper repair, on the ground that the structure was an unlawful one. But it appearing that the bridge, though originally built by private subscriptions, was upon a highway, and had been used by the public at all times to pass over the river, and had also been accepted by the town and treated as town property, the town was held liable for an injury happening by reason of its insufficiency, though the bridge might have been maintained without lawful right. But the bridge in question does not come within the application of any such principle or rule of law. This bridge was built by volunteers, without any authority from the defendant, and at least ten rods distant from any public highway. It was erected for the accommodation of the persons who built it, though the public have likewise used it. But it is beyond the limits of any highway which the town is bound to repair, and it does not, like that in the Houfe case, connect portions of road on each side of the creek, which were highways of the town. The town has not adopted it, nor recognized it in any manner as a bridge belonging to the town. Were the bridge erected within the limits of the highway by private individuals, there would be much reason for holding that the town was bound to adopt it as a part of the highway, and keep it in repair, or remove it from the highway altogether. (See The King v. The Inhabitants of West Riding of Yorkshire, 2 East, 341.) But such is not the case. The bridge is not a public bridge, nor is the way. from the bottom of the hill across the creek at that point a highway by user. We have not been referred to any case which would be an authority for holding the town liable for the repair of a bridge built by individuals, as this was, distant from any public highway, which the town has never recognized as a bridge belonging to it or under its control.

The case of Requa v. City of Rochester, 45 N. Y., 130, is no authority for holding the town bound to repair this bridge upon the facts disclosed in the evidence. In that case an excavation was made in a street by the authorities • of the city, so as to cause an abrupt descent from a public alley to the street, and rendered egress from the alley inconvenient and dangerous. This excavation had been bridged by a volunteer, and the city had allowed the bridge to remain there for years. The court held, upon the facts of the case, that this bridge became the property of the city, and, as it was the duty of the city to keep its streets and public alleys in a condition for safe passage over them, it was bound to keep this bridge in suitable repair.

The cases of Cobb v. Inhabitants of Standish, 14 Me., 198, and Savage v. Bangor, 40 id., 176, are not at all analogous to the one before us. In those cases the defects were within the limits of the highways.

The fact that the main travel passed over the bridge after its erection, without objection from the authorities of the town, cannot render the town responsible for the repair of the bridge, unless the structure was situated on and constituted a part of a public highway. The injury was occasioned by defects in a private bridge, and not by defects in a public bridge. Por the bridge was so far distant from any public highway, that in no sense did it constitute any portion or part of a highway of the town. Uor do we well see what right the authorities of the town had to object to persons crossing this bridge who might be willing to take the risk of doing so.

It is said by plaintiff’s counsel, that the condition of the old ford was such that the plaintiff was compelled to cross the bridge in order to pursue his journey home to Sugartown, and that the town is responsible for imposing upon him this risk. The crossing by the old ford in times of high water was confessedly difficult, but, as before remarked, was not impracticable at this time. But the highway across the creek at the dalles was provided with a safe bridge, which the plaintiff might have taken and avoided all danger. It must be borne in mind that the old pinery road led through a barren and uncultivated country, where population was sparse. And it would be onerous to require towns in such districts to build and maintain as many bridges as in more wealthy and populous communities. "We do not, however, intend to relieve towns from the duty the statute imposes to keep the highways and bridges within their limits in a suitable condition for public travel. Had the bridge where the injury was received been upon a public highway which the town was bound to keep in a safe and proper condition, the liability would be enforced.

But again it is said the town was negligent in not using some means to warn travelers off the way on which the bridge was situated, and to prevent them from incurring danger in crossing it. The evidence shows very clearly that the plaintiff was well acquainted with this bridge, having crossed it but three days before the accident, while going to Eau Claire. A notice to him of its obvious defects and insufficiency would afford no information which he did not already possess. He was perfectly familiar with the bridge, and. doubtless had as much knowledge of its condition as any one. But, under the circumstances of the case, we cannot assent to the proposition that it was the duty of the defendant town to place barriers across the way leading from the highway over the hill to this bridge; or to post notices informing the public that the bridge did not belong to the town, or that it was out of repair. It is apparent that if barriers were placed or notices posted anywhere, in order to be effectual for warning, they should have been placed or posted at or near the point where the track diverged from the highway, which would be in the town of Lincoln. But we do not understand it to be the duty of a town to provide barriers or post notices to prevent. travelers from driving off the public highway to places of danger not contiguous to the highway but distant from. it. In. Chapman v. Cook, 10 R. I., 304, the court say that no such obligation rests upon the town, and the doctrine seems reasonable and just. In that case an accident happened to one who drove off by mistake from the public highway upon a private way connected therewith, and was injured by a defect in the private way some fifty to one hundred feet from the junction of the two ways. ■ And it was claimed that it was the duty of the town, knowing the private way to be dangerous, to place a fence at the deviation so as to prevent persons passing along the highway from driving off into it. But the court, in a well considered opinion, overruled the position, and denied that any such duty was imposed by law upon the town. There is nothing in this case in conflict with Burnham v. The City of Boston, 10 Allen, 290. In the latter case there was an excavation within the limits of one of the streets of the city, and it appeared that persons were accustomed to pass on a way, either public or private, over adjacent lots, into the street where the excavation existed. The city had provided, no barrier for the purpose of preventing persons who passed over the way from the adjoining lots into the street from falling into the excavation. And it was held that the city had unreasonably omitted to erect such a barrier, and was guilty of negligence for which it was liable to a person injured in consequence of the excavation. Substantially the same doctrine was laid down by this court in The City of Milwaukee v. Davis, 6 Wis., 377. See also Seward v. The Town of Milford, 21 id., 485. But in these cases the defect was one in the highway itself, and the danger to be guarded against was not distant from the street, as in the case before us. Here the danger was not any danger upon any public highway, and we see no ground for holding that the town should have adopted measures to prevent persons from leaving the highway and crossing this private bridge. It seems to us that whoever went there, under the circumstances, went at his own risk, and must abide the consequences. These views are decisive of this case, and require a reversal of the judgment.

By the Court. — The judgment of the the circuit court is reversed, and a new trial ordered.