53 Wis. 196 | Wis. | 1881
The accident which caused the injury complained of is alleged to have happened by reason of the city not keeping barriers and lights in the street where it occurred (which was then being paved and thereby rendered unsafe for travel), which would have prevented it. The duty of the city to protect the traveling public from injury liable to happen in consequence of street improvements of this character is the vital principle of this case; and, before applying it to the facts and findings, it is necessary to determine the nature of this duty of the city, and the extent and measure of the responsi
In the leading case of City of Milwaukee v. Davis, 6 Wis., 377, it is said: “The leaving of the street in that impassable condition on the night in question, without lights, fence or guard, or other token, . ■. . is in fact the gravamen of the complaint.
In Seward v. Town of Milford, 21 Wis., 485, an instruction .was approved, “ that if the town had not had time to
In Ward v. Town of Jefferson, 24 Wis., 342, the two duties are coupled together,, in the language: “And to have put the road in repair, or by other means to have guarded against and prevented the injury.”
In Hammond v. Town of Mukwa, 40 Wis., 35, the present chief justice said: “And we are clear that the town is primarily liable when it fails to keep such highway safe for public travel, or does not use proper precautions to warn travelers of the dangerous condition of the highway.”
It is said in Shearman & Redfield on Negligence, § 399, citing several authorities: “Pending the work of rebuilding if the public is put upon its guard, the town will be excused for the defective condition of the highway.”
These references are quite sufficient to show by authority, what is apparent in reason, that in the very nature of the duty' to keep highways in repair and safe for travel is included the duty to use proper precautions against accident while they are unsafe and out of repair, and that the two duties, if they may be nominally sepai’ated, are of the same nature and obligation, and liability for their non-performance rests upon the same degree of negligence. It follows, therefore, that if the city could not be held to a strict and absolute, but only to a reasonable, performance of the duty to keep its streets in repair and safe for travel, and in respect thereto only to the exercise of ordinary care and prudence, and would not be held liable for an injury occasioned by their being out of repair and unsafe, without actual or presumptive notice that they are in such condition, it should be held to no stricter performance of the duty to.protect the public by suitable precautions from injury while the streets are out of repair and unsafe for travel, and in respect thereto should be held to the exercise of the same degree of care and prudence. It is too well established to re
In Shearman & Redfield, § 376, it is said: “ During the progress of the work of altering or repairing a highway, ordinary care must be used to prevent injuries to passengers therefrom.” In Kœster v. Oity of Ottumwa, 34 Iowa, 41, an excavation in the sidewalk, into which the plaintiff fell, had been made and guarded in a certain manner by a builder; and on the trial a witness was asked, substantially, whether this excavation was not guarded in the customary manner among builders. This evidence was held improper, and the supreme court, in affirming the ruling, say: “The point in issue was as to whether the defendant had been negligent in fact. If the custom in that city had been to do more in the way of barricading than ordina/ry care and prudence required, the defendants, nevertheless, would not have been liable if it had done only what ordinary care and prudence required. It must exercise ordinary care. Custom will hot require it to do more, nor excuse it for doing less.”
"We think that we have sufficiently shown that the liability of the city for not properly guarding a street made dangerous to travelers by works of improvement, so as to prevent accidents thereon, as an implied liability arising from its liability imposed by the statute for not keeping it in a condition of repair and safety, is not an absolute liability, but depending
In Seward v. Town of Milford, supra, the following instruction to the jury was approved by this court: “If the town put up proper guards to notify and keep travelers from going on the dangerous track, and kept them up until the night of the accident, and such guards were removed by some person in the dark, it is not liable.” The case of Doherty v. Inhabitants of Waltham, 4 Gray, 596, is closely analogous to this case in its facts relating to the putting up and the removal of the barriers. The workmen, before they left the work at
It appears by the evidence that this accident occurred about 9 or 10 o’clock in the evening, and the jury found that the barrier was up at 4 o’clock that afternoon, and they found further that it was not removed by the contractor or any one in his employ, and there was no finding or proof when the barrier was removed or by whom. The jury found that neither the contractor nor the city, nor any of its officers, had notice before the accident that the barrier had been removed. If we were to construe this finding that the city had no actual or implied or presumptive notice of the removal, then by the above principle apd authorities'the plaintiff, was'not entitled'
This opinion has been extended perhaps to a needless length, but the main question is an important one, and likely to arise in many kindred cases.
By the Oowrt.— The judgment of the county court is reversed, and a new trial ordered.