102 Wis. 17 | Wis. | 1899
This is an action to recover damages for injuries alleged to have been sustained by the plaintiff because of failure by the defendant city to perform its statutory duty of making the city street, where the injury
Sec. 1339, Stats. 1898, provides that no action shall be maintained to recover damages caused by the insufficiency or want of repair of a street in any city, unless, within fifteen days after the occurrence of the event causing the injury, a notice in writing, signed by the party, his agent or attorney, shall be given to the mayor or city clerk of the city against which the damages are claimed, stating the place where and time when the injury occurred, and describing generally the insufficiency or want of repair which occasioned it, and that satisfaction therefor is claimed of such city. The complaint in this action .shows that notice of plaintiff’s claim was not given to the city till long after the expiration of the statutory period, hence it fails to state a cause of action. The point involved has often been discussed by this court, and very recently in Daniels v. Racine, supra.
Counsel for respondent contend that the statutory requirement for a notice referred to does not apply to injuries caused by defects in the original construction of a street, and cite cases in this court where it has been held that a municipality is responsible the same as a private individual for an improper obstruction placed in a street, constituting a nuisance. Hughes v. Fond du Lac, 73 Wis. 380, is referred to, where a roller was left in the street; also Little v. Madi
Stephani v. Manitowoc, 89 Wis. 467, is confidently referred to by respondent. Possibly the learned trial court was misled as to what is there decided. The defect complained of related to the original preparation of the street for public travel in that it was alleged there were no proper safeguards provided to prevent people from walking into an open drawbridge. The court said, previous notice of the defect was not requisite to charge the city with damages to a person injured thereby. That remark was not made with reference to notice of the injury under sec. 1339, but notice of the existence of the defect itself prior to the injury. It was the statement of a familiar principle of law that, while no
By the Court.— The order appealed from is reversed, and the cause remanded with directions to sustain the demurrer to the complaint.