56 Wis. 667 | Wis. | 1883
These are two writs of error in the same case, in the first of which the demurrer to the complaint was sustained, and in the second it was overruled. The complaint substantially charges that the deceased came to his death while navigating the Wolf river, in this state, with a vessel called the North Star, of which he was part owner, by reason of the acts of malfeasance and misfeasance of the defendants in placing a bridge across said Wolf river, a navigable stream within said town and village, which obstructed the navigation thereof unless a certain draw therein had been opened, and that by the negligence of the officers, agents, and employees of said defendants such draw was not opened. In short, the complaint charges that the defendants obstructed said river and neglected to remove such obstruction, by reason whereof the deceased, while navigating the same, was killed. This would appear to be a straight common law action, as well as warranted by sec. 1598, R. S.
This view of the case, as to the town, would seem to be sufficient to establish its liability for any special injury or damage to the plaintiff occasioned by its direct act in obstructing the navigation of the Wolf river, and by its neglect in taking the legal and proper precautions against such injury or damage, by causing the obstruction to be removed, or the draw to be opened, which is the same thing in effect. But other statutes might be referred to as charging the town with direct responsibility as to this bridge, such as ch. 138, P. & L. Laws of 1871, authorizing the town to issue bonds to raise money to build a bridge at this point; sec. 776, R. S., authorizing towns to raise money to build bridges; and sec. 1223, R. S., giving the. towns supervision of all bridges therein; and
The only remaining question as to the liability of the town is whether the proper statutory notice was given to warrant the action. The complaint alleges that on the 5th day of April, 1880, the plaintiff “ filed a statement of her claim with the town clerk, and that more than ten days have elapsed since the annual town meeting of said town held after the filing of said claim.” This was in strict compliance with sec. 824, R. S., as to such claims against towns, and, as we have seen, the statute relating to highways and bridges having nothing to do with this action, the notice required by sec. 1339, R. S., as to damages occasioned by the want of rqpair of highways, need not have been given, to entitle the plaintiff to bring this action. The complaint as to the Village of Wmneconne alleges, and we think is warranted by law, that it was the duty of the president and trustees of said village to build and repair bridges within said village, and that they have the power to raise money by taxation for such purpose, and that both of said defendants, in fact, had the charge, management, and control of said draw and bridge, so as not to interfere with navigation, and that it was by the negligence of their officers, agents, and employees that this obstruction caused the injury complained of. This would seem to be sufficient to establish the joint and several liability of both of the defendants in this suit.
There is certainly enough in this complaint to charge both
There are no close or complicated questions of law in the case, and the liability of the defendants rests upon the plainest of elementary principles.
The demurrer as to the Village of Winneconne was properly overruled, and the demurrer as to the town ought to have been.
By the Oourt.— The order of the circuit court sustaining the demurrer as to the Town of Wvnnecowne is reversed, and the order of the circuit court overruling the demurrer as to the Village of Winneconne is affirmed, and the cause remanded for further proceedings according to law.