Stephani v. City of Manitowoc

101 Wis. 59 | Wis. | 1898

Winslow, J.

On the 29th of November, 1891, the plaintiff filed with the city clerk of the city of Manitowoc a claim against the city in the sum of $5,000 on account of the death of his intestate, which claim was entirely disallowed by the board of aldermen of the city, whereupon the plaintiff appealed to the circuit court, and gave a bond upon sueli appeal in attempted compliance with the provisions of the charter of the city. It was objected at the outset of the trial in the circuit court that no jurisdiction of the action had been acquired by that court, because the action was a tort action and should have been commenced by summons; and that the provisions of the charter of Mamitowoc, providing for appeals to the circuit court from the action of the council, apply only to contract demands. This contention seems to be sufficiently answered by reference to secs. 54, 55, 57, of defendant’s charter (ch. 95, Laws of 1891), which read as follows: *

“Sec. 54. LTo action shall he maintained by,any person or corporation against the city of Manitowoc, upon any account, claim, demand or cause of action, wherein any money judgment or judgment for damages is demanded, until such person or corporation shall have first presented his account, claim, demand, or cause of action to the board of aldermen for allowance or adjustment.

“Sec. 55. The determination of the board of aldermen disalloAving, in whole or in part, any claim of any person, shall be final and conclusive and a perpetual bar to any action in any court founded on such claim, unless an appeal be taken from the decision and determination of such board as in this act provided.”

“ Sec. 51. When any claim against the city shall be’ disallowed in whole or in part by the board of aldermen, such person may appeal from the decision of said board disallowing said claim to the circuit court of Manitowoc county by causing á written notice of such appeal to be served on the clerk of said city within twenty days after the making of such decision and by executing a bond to the said city, with sufficient surety, to be approved by said clerk, conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant in the circuit court. The clerk, in case such appeal is taken, shall make a brief statement of the proceedings had in the case before the board of aldermen, with its decision thereon, and shall transmit the same, together with the bond and all the papers in the case, to the clerk of the circuit court of Manitowoc county, and thereupon such appeal shall be entered, tried and determined in the same manner as oases originally commenced in said court. . . .”

A cause of action like the one before us is certainly a cause of action wherein a judgment for damages is demanded, and it therefore clearly comes within the terms of the foregoing .sections, which seem to have been carefully framed with the intention of including tort as well as contract demands.

An objection was also made to the bond given on appeal, because it was claimed that the bond only bound the appellant to pay all the costs which might be adjudged against him in the circuit court of Manitowoc county, whereas the statute requires an undertaking to pay all costs in the circuit court, and the case of Drinkwine v. Eau Claire, 83 Wis. 428, is relied upon. The condition of the bond is as follows: “Now, therefore, if the said bounden William Stephani shall faithfully prosecute said appeal in the circuit court, and pay all costs which shall be adjudged against him in said circuit court, then this obligation shall be void,” etc. We regard this as very plainly complying with the statute. Discussion does not seem necessary.

Proceeding now to the merits of the case, we find very few adjudications touching the duties of the corporation maintaining a swing bridge, and fewer yet which discuss the duties of the traveler approaching such a bridge. The principles, however, which must govern the rights of both parties cannot be difficult of ascertainment or application. The bridge (although it be a swing bridge) is an essential part of the highway. Moreover, under the terms of sec. 1339, R. S. 1878, if, by reason of any insufficiency therein, a traveler suffers injury without contributory negligence, the •city is liable for such injury. In this very case it has been held, upon demurrer to the complaint, that, if barriers or lights were necessary to protect travelers from falling from the bridge when the draw was open, then the absence of such barriers or lights .was an insufficiency or defect in the structure of the bridge. Stephani v. Manitowoc, 89 Wis. 467. This is the law of the case so far as the duty of the city is concerned; and, the evidence showing that there were no .such barriers, there was ample foundation for the finding of the jury to the effect that the sidewalk across the bridge was insufficient and unsafe for travel. See, also, Chicago v. Wright, 68 Ill. 586; Chicago v. McDonald, 57 Ill. App. 250.

As to the rights and duties of the traveler, it is, in effect, claimed by the plaintiff that they are no different from the rights and duties of a traveler upon an ordinary highway; that he has the right to assume that the bridge is safe for travel, and to proceed under that assumption; and that temporary forgetfulness of a known defect is not necessarily negligence. Simonds v. Baraboo, 93 Wis. 40. On the other hand, it is claimed by the defendant that it is the duty of one approaching a swing bridge, which he knows is frequently open, to look and listen in the same manner as he is required to do when approaching a railway crossing; and that if he fails so to do, he is chargeable with knowledge of all that he might have learned had he looked. McKinney v. C. & N. W. R. Co. 87 Wis. 282.

Before considering this question, a brief recapitulation of undisputed facts is necessary. The swing part of the bridge is 162 feet in length. The river itself between dock lines is about 380 feet in width, the south approach being nearly 100 feet in length, and the north approach about 120 feet in length. These approaches are in the nature of stationary bridges or viaducts connecting the street with the swing bridge. They are planked, are narrower than the street, and have handrails at the side; and at the land end of each approach there is hanging over the sidewalk a twenty-four-candle power electric light, so that none could fail to know that he was nearing the bridge when he approached from either direction. The bridge apparently had no superstructure above the roadway save a railing on each side, nearly four feet in height, filled with metal netting, and a further rail on each side of the carriageway, separating it from the footway. The red signal light was nearly eight feet above the floor of the bridge and in the exact middle above one of the last-named rails. The plaintiff’s intestate had lived in Manitowoc for many years, and had' crossed and recrossed the bridge, both in the'daytime and in the evening, almost daily, for years. It is admitted that she must have known that it was a swing bridge, that it was frequently opened, and that there were no guards, and that a person who walked off from the approach would go into the river. She was a strong, able-bodied wom'an, in full possession of all her faculties, and in the prime of life.

ISTow, in view of her knowledge of the situation and the danger, what was her duty when she entered upon the south approach of the bridge ? She then knew that the bridge was a hundred feet ahead of her. Could she say to herself: That bridge ought to be closed, and I am entitled to act on the assumption that it is closed, or that, if open, there is a guard in front of it which will prevent my walking into the chasm ? Or, on the other hand, must she say to herself: I am now approaching a swing bridge. It may be open, and I know there is no guard. I must use my eyes and ears to the best advantage to guard against the possibility of walking into the open draw ?■ Reason and common sense indicate but one answer to these questions, and that is that she must adopt the second course, if she would exercise ordinary care. Such is the course absolutely demanded of one who is knowingly approaching a railway crossing. The reason is that the crossing itself is a danger signal which the traveler cannot ignore. The approach to a swing bridge is an advertisement of danger to one who knows the character of the bridge, which speaks as loudly, and logically calls for as great an exercise of care, as the track of a railway. The possible yawning chasm is as great and real a danger as the possible rushing locomotive, and the warning that it may exist is just as emphatic.

In the present case the jury has found that the plaintiff’s intestate could not have seen that the draw was open if she had looked. This finding is based only on the fact that it was a dark night, and the testimony of two witnesses, who say that by looking down in front of them they could not tell whether the bridge was open or closed, because it was too dark. These same witnesses, however, admit that if one approaching from the south were to look at the electric light on the north approach of the bridge, he could plainly see the open bridge between himself and the light. This is substantially the testimony of all the witnesses, and it accords with reason. The requirement of ordinary care in approaching the bridge, after being advertised of the danger by the very fact of walking up and over the approach, would not be satisfied by “ looking down in front ” upon the sidewalk, but would require looking ahead, if there were lights ahead; and if; as appears beyond dispute in this case,-there was a light immediately ahead, which, when looked at, would show that the bridge was open, then the failure to look and observe would be a failure to exercise ordinary care under the circumstances. There is much testimony, also, that the intestate failed to use her ears as well as her eyes. The bridge bell was admittedly rung before the bridge was opened, and the evidence shows that it could be heard several blocks away; the steam barge which was approaching the bridge was making a slow exhaust as it approached the bridge, which made quite a loud noise; and there is also proof that a man with an omnibus and team drove up on the south approach after the bridge was open, and discovered it to be open by seeing the danger signal, and backed his team around, and, just as he was starting away, heard the splash of the plaintiff’s intestate falling in. All these facts indicate clearly that the intestate neither looked nor listened. It was her duty to look and listen when she was advised by the approach that she was nearing what might be an open chasm; and, it being clear that, if she had looked, she could have seen that the bridge was open, the verdict is unsupported by tbe evidence and cannot stand.

By the Gov/rb. — Judgment reversed, and action remanded for a new trial.