91 Wis. 490 | Wis. | 1895
The question presented in this caséis whether, under the charter of the city of Green Bay, the owner of a lot in that city is liable t,o a passer-by for injuries resulting from a fall occasioned by a defective and worn-out sidewalk in front of such lot. The question is whether the lot owner is liable for mere failure to repair, not whether he is liable for active negligence in placing an obstruction or making an excavation in the street or sidewalk. Therefore, the cases which have been decided in this court, sustaining the liability of lot owners or others for injuries caused by obstructions or excavations made by them in the streets, can have little or no application here. Such are the cases of McFarlane v. Milwaukee, 51 Wis. 691; Raymond v. Sheboygan, 70 Wis. 318; Papworth v. Milwaukee, 64 Wis. 389; Kollock v.
It has been recently decided that sec. 13395, S. & B. Ann. Stats. (Laws of 1889, ch. 411, sec. 1), creates no new liability or right of action. It “ merely regulates the remedy for rights of action otherwise created.” Cooper v. Waterloo, supra. It is not claimed that there is any other general state law which creates a liability, but that it is created by the charter of the city of Creen Bay (Laws of 1882, ch: 169). This contention necessitates a critical examination of that charter.
Starting with the general undoubted proposition that every city in the state is charged with the duty of keeping its streets and sidewalks in repair, and is responsible for negligence in discharge of that duty, we turn to the charter in question, and find very full authority given to the city to enable it to discharge this duty at the expense of the lot owners. By ch. IY it is given authority to control, regulate, repair, and clear streets and sidewalks. By ch. YI it is provided, in substance: First, that the paving of streets and the building and rebuilding of sidewalks shall be chargeable to the abutting lots; second, that the expense of keeping sidewalks and gutters in repair shall be chargeable to the abutting lots, “ and the duty of always keeping the sidewalks bn or adjacent to the lots and premises of any person in safe condition and good repair is hereby expressly enjoined and imposed upon all owners or occupants of said lots and premises. third, that the street superintendent shall make frequent inspection of all sidewalks and pavements in
Counsel for the city contend, and with force, that by these charter provisions it is made the duty of the lot owner to keep the sidewalk in repair, that this duty is imposed for the benefit of every person who has occasion to use the walk, and that failure to perform that duty is negligence for which the passer-by who is injured thereby may have his action. If the premises are correct, the conclusion follows. It was early decided by this court that, where a law imposes a specific duty upon one person for the benefit of others, an action will lie in favor of one for whose benefit the duty was imposed, in case of neglect to perform the duty and resulting damage. McCall v. Chamberlain, 13 Wis. 637. This principle was reaffirmed at the present term. Smith v. Milwaukee B. & T. Exchange, ante, p. .360. Therefore,-when it is provided in this charter that it shall be the duty of the lot owner to keep the sidewalk in front of his premises in repair, the question is whether this is a duty which is imposed
In its terms, the clause in question seems very like the ordinance requiring the builder of a new building adjoining a street to roof the sidewalk, which was before this court in the 8müh Case, last cited, and which was held to impose a duty for the benefit of the passer-by. We are convinced,, however, that such is not the proper construction of the provision of the charter now before us, and shall briefly give our reasons. It has long been the policy of our law to place upon municipal corporations the responsibility of keeping the: streets and sidewalks in safe condition for travel. It is,, unquestionably, a wise policy, for it insures uniformity in plan and execution, and places the responsibility in the hands of a power amply able to sustain it, to employ all the agents that may be necessary to discharge its duty carefully and well, and to answer for any neglect of its duty. The citizen knows, and has the right to know, that if the public way is not safe and he is injured he has a certain remedy against the corporation whose duty it is to keep it safe. Thus he is fully and certainly protected. A separate liability to him on the part of the property owner, by whose lot he happens to be passing when he is injured, furnishes him no additional protection. He does not want it. In fact, he would rather not have it. It is an embarrassment rather than an advantage, especially under a law requiring the exhausting of the remedy against the lot owner before resorting to the city. On the other hand, it is a very distinct and substantial benefit to the city, in its corporate capacity, to be furnished with the means to carry out its duty of keeping the highways safe; and this, it seems to us, is the object of the provision under consideration. It is simply a declaration of the duty which the lot owner owes to the corporation, namely, the duty, under control and supervision of the corporation, either to make repairs or, at his option, to re-
Again, the lot owner has no choice as to the kind of repairs. It is very evident that the kind of repairs to be made, and the material to be used, are under the control of the street superintendent. If a lot owner proceeds of his own motion to repair, the street superintendent may stop him, compel him to change or remove what he has done, and require him to repair differently. Surely, if the lot owner must repair of his own motion, and owes that duty to every passer-by, on pain of damages for injuries, he ought to know • definitely what he is to do. He can hardly owe a definite duty when he has no means of knowing how to discharge it. As aptly said in the case of Rochester v. Campbell, 123 N. Y. 405, “It cannot be supposed that the legislature intended to impose an absolute duty to repair on an individual who could not exercise it except under the control of another.” This last-mentioned case involves the question of the liability of the lot owner to the passer-by for injuries arising from a defective sidewalk. The charter provisions were the same in legal effect as here, and the conclusion reached is the same as that which we have reached, and is supported by a very able opinion with a wealth of authorities. To the same effect, also, is the case of Taylor v. L. S. & M. S. R. Co. 45 Mich. 74. The same rule was laid down, without discussion, in Sommers v. Marshfield, 90 Wis. 59.
We are aware that in Hiner v. Fond du Lac, 71 Wis. 74, a charter provision, similar to the provision in the present case, was construed as imposing on the lot owner an immediate duty to repair, without regard to the action of the city
By the Oowrt.— Order affirmed.