Griswold v. Camp

149 Wis. 399 | Wis. | 1912

Marshalu, J.

Tbe duty of a municipality as regards keeping its sidewalks reasonably safe for public travel, does not, generally speaking, include obviating danger to travelers using snob walks from mere slipperiness produced by natural causes. Cook v. Milwaukee, 24 Wis. 270; Salzer v. Milwaukee, 97 Wis. 471, 73 N. W. 20. So tbe purpose of tbe ordinance in question was not to require tbe owners or occupants of lots to aid tbe city in tbe performance of its duty. There was no common-law duty of a person circumstanced as respondent was to protect travelers from danger of being injured by sucb slippery condition. Tbat is too clear for argument. Where then is there any legitimate basis for tbe claim of liability ?

Appellant seems to think tbe case turns on tbe validity of tbe ordinance and so seeks to demonstrate tbat it is reasonable, and, therefore, valid. It may well be conceded that tbe ordinance is valid; but it does not, in terms, attempt to create sucb a liability as is sought to be enforced, even if sucb liability could be so created. Does a mere police regulation of tbe nature under consideration, — one requiring tbe occupant of a lot to do something tbe city is not liable to do in order to render its sidewalks reasonably safe, and imposing on him a penalty in favor of tbe city for failure to comply therewith,— manifest, clearly, a purpose to render a person guilty of sucb failure also liable on tbe ground of negligence, as claimed in this case ? If any such liability be discoverable, it must be found in tbe intent and spirit rather than in literal sense.

Tbat sucb an ordinance as tbe one in question, or a charter provision of similar import, does not contemplate any consequence to tbe wrongdoer but those specifically mentioned therein, is ruled by Sommers v. Marshfield, 90 Wis. 59, 62 N. W. 937; Selleck v. Tallman, 93 Wis. 246, 67 N. W. 36; Hay v. Baraboo, 127 Wis. 1, 105 N. W. 654; and other cases. Even where the thing required of the lotowner is essential to> performance of a municipal duty, the mere creation of a duty, as in this case, and failure to perform, is penalized, it has. uniformly been held, as the cited cases show, that a person who has received a personal injury by reason of a condition which would not have existed but for such failure, cannot recover compensation from such owner, because no such purpose can fairly be read out of the ordinance.

In Sommers v. Marshfield, supra, the difficulty involved here was a vital matter. It arose under an express charter provision, making it the duty of one, circumstanced as respondent was, “to keep all sidewalks around” his premises “free from snow, ice, rubbish, boxes, barrels, or other obstructions interfering with persons traveling thereon,” and imposing a penalty for failure to perform such duty. The court held that such requirement did not create a duty rendering such owner or occupant primarily liable for an injury to a traveler caused by breach of such duty, — that in an action for recovery for such injury such person was not even a proper party.

In the above cited case, this court is in harmony with authorities elsewhere. Vandyke v. Cincinnati, 1 Disney, 532, is cited, commonly, by text-writers as giving the correct rule. It was there held that such an ordinance as that in question can be enforced only by the penalty prescribed; that a violation thereof does not subject the guilty party to a civil action at the suit of a private person.

Counsel rely on the doctrine that failure to obey a statute designed to conserve human safety, is negligence per se. That is not of universal application. It depends upon the presumed legislative intent. In all cases where the doctrine has been applied there was a manifest purpose to create the liability or make a rule of evidence as to an existing dnty. Such was the case in Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041. There tbe ordinance dealt with a situation, where, by statute, the municipality was in duty bound to keep the sidewalks in a reasonably safe condition for public travel, and persons doing work contemplated on premises adjacent to the street, were in duty bound to conduct their operations with ordinary care for the safety of persons lawfully using the walk. The ordinance required the party responsible for the work on adjacent property to aid the city in performing its duty and to do the particular thing as essential to ordinary care on his part. The ordinance did not create any liability; that existed independently of any legislation. All the ordinance did was to regulate the performance of an existing duty. Courts have not gone so far as to construe any such ordinance as that in question as creating a liability such as the one claimed.

By the Court. — The judgment is affirmed.