70 Wis. 318 | Wis. | 1887
The appellant brought this action to recover damages for injuries sustained while driving along one of the streets of the defendant city. The allegation in the
By an amendment to the city charter, it is provided that whenever any injury shall happen to persons or property in the defendant citjr by reason of any defect or incum-brance of any street for which the city would be liable, and such defect or incumbrance was caused or procured by the wrong or negligence of any person, such person so guilty of the wrong or negligence shall be primarily liable for all damages for such injury, and the city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person. Sec. 24, ch. 236, Laws of 1874. The very obvious intent and meaning of this provision is to require the injured party first to exhaust all legal remedies to collect his damages from the wrong-doer or person causing the defect or placing the obstruction in the street, before the liability of the city shall be enforced. A similar provision is found in a number of the citjr charters of the state, and this court has had occasion to consider its effect in cases which have come before it. Its validity has been affirmed, and it has been held that
The jury found that the owner of the abutting lot placed the pile of dirt in the street while excavating a cellar on his lot. The owner might thus use the street, providing he did not improperly obstruct it, and had taken due care to guard the mound so as to prevent accidents to travelers. This principle is sanctioned in Hundhausen v. Bond, 36 Wis. 30, as being entirely consistent with the rights of the public in the street. It is there said: “ When, in a city, an owner of an abutting lot has occasion to build, and for that purpose to dig cellars, he may rightfully lay his building materials and earth within the limits of the street, provided he takes care not improperly to obstruct the same, and to remove them within a reasonable time.” In this case, it would appear, 'prima facie, that the owner was guilty of actionable negligence, at least, in not putting up some light or guard at the pile of earth to prevent accidents to those traveling the street by night. Eor the purpose of this case, we assume that he was, and that the plaintiff could have maintained his action against him for his injuries, as he was primarily liable for them. Under
Some objection was taken to the answer, which set up this matter in abatement, because it was not'sufficiently clear and precise, and did not show that the wrong-doer was living and within the jurisdiction of the court. We do not think the objection well taken. Under the Code, the defendant may unite in the same answer a defense which was formerly a plea in abatement, and one which was a plea in bar. Freeman v. Carpenter, 17 Wis. 126; Dutcher v. Dutcher, 39 Wis. 651; Hooker v. Greene, 50 Wis. 271. And we suppose a plea in abatement, or an answer in the nature of such a plea, must'be liberally construed, with a view to substantial justice, like any other pleading. The answer states that Keseberg, who placed the pile of earth in the street, was a resident of the city. Presumably he was living. The answer informed the plaintiff who was liable for the injury, and against whom he should have brought his action.
Whether the city was guilty of negligence in not removing the dirt from the street before the accident happened, is not a question before us. Concede that it was, that its officers were guilty of actual neglect, as counsel-claims, still its liability cannot be enforced until the plaintiff has exhausted all his legal remedies to collect his damages from the owner of the lot, who placed the obstruction in the street.
By the Court.— The judgment of the circuit court is affirmed.