Harper v. City of Milwaukee

LYON, J. This action is not founded upon tbe statute which makes a town liable for damages to person or property caused by tbe insufficiency or want of repairs of a highway, and which was held by this court in tbe case or Kittredge v. Milwaukee, 26 Wis., 46, to be applicable to tbe city of Milwaukee. Taylor’s Stats., 513, § 156. Tbe statute only gives an action for damages sustained in using tbe highway for tbe purposes for which a highway may lawfully be used. If tbe highway is not in a reasonably safe condition for travel, and a traveler upon it, who is himself free from negligence, is injured by reason of tbe same being out of repair, an action for such injury may be maintained by virtue of tbe statute, but in no other case. Such is tbe construction which has been given to similar statutes 'in other states, and tbe construction is believed to be a sound one. Tisdale v. Inhabitants of Norton, 8 Met., 388; Holman v. Inhabitants of Townsend, 13 Id., 297; Peck v. Inhabitants of Ellsworth, 36 Me., 393; Smith v. Inhabitants of Dedham, 8 Cush., 522. If the city of Milwaukee is liable at all in this action, it is so because it has created or permitted a nuisance, by means whereof the plaintiffs have suffered special damages. It will probably not be disputed that bad an individual, — 372 — without competent authority, placed the earth and material mentioned in the complaint, in the street and gutter adjacent to the premises of the plaintiffs, and thereby caused the injury complained of, the plaintiffs could have maintained an action' therefor against him. In such case the obstruction to the flow of the water along the gutter of the street would be a public nuisance, and the plaintiffs having suffered particular damage therefrom, could, doubtless, maintain an action. Stetson v. Faxton, 19 Pick., 147. If the earth and material were unnecessarily placed there by the city, or by its agents or servants who were charged by law with the duty of constructing the sewer, or if the proper city authorities permitted the same to remain there an unreasonable time, although necessarily placed there in the first instance, such obstruction to the flow of the water would thereby become a public nuisance, in like manner as it would be bad it been unlawfully put there by an individual. The general rule of law is that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses, and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible, in any case in which, under like circumstances, an action could be maintained against an individual. Pittsburgh City v. Grier, 22 Penn. St. R., (10 Harris), 54; Brower v. The Mayor, etc., of New York, 3 Barb., 254; Young v. Leedom, 67 Penn. St. R., 351; Delmonico v. The Mayor, etc., of New York, 1 Sandf., 222; are a few of the numerous cases which assert or recognize this principle. In this case it is perfectly apparent that the obstructions to the gutter and street were permitted unnecessarily to remain therein by the officers of the city, whose duty it was to remove the same. Under the charge of the court the jury must have found that fact, and also the further facts that those' officers knew of the existence of the obstructions, and had ample time to remove the same before the injury complained of happened, and that they also knew the dangerous character of the obstruc — 373 — tions in the event that a heavy rain should fall before they were removed. These facts demonstrate that the earth and material so placed, and suffered to remain in the street and gutter, constituted a nuisance, for the existence of which the city of Milwaukee is responsible, and is liable for the damages occasioned by it to the plaintiffs, unless it is relieved from such liability by some provision of its charter, or by some peculiar circumstances in the case. This brings us to consider the various grounds upon which the learned counsel for the city argues that such liability does not exist in this case. I. When the plaintiffs closed their proofs on the trial, a motion was made on behalf of the defendant for a nonsuit, for the reason that there was no proof that the sewer was being constructed under the authority of the defendant. The same objection is urged in this court. The alleged imperfection in the plaintiff’s proofs was supplied by the defendant, by the introduction on its part of testimony showing that the sewer was constructed pursuant to a contract entered into by the city with the parties who constructed the same. It is well settled that when a motion for a nonsuit for want of sufficient evidence to maintain the action is improperly denied, if the defect be after-wards supplied by either party, and there is enough evidence in the whole case to sustain the verdict, such refusal to nonsuit the plaintiff will not work a reversal of the judgment. Dodge v. McDonnell, 14 Wis., 553; Barton v. Kane, 17 Id., 37. Applying this rule to the present case, and the objection that the court erred in refusing the nonsuit, is not available to the defendant. We do not decide whether the nonsuit should have been granted, as that question has, for the reasons stated, become immaterial in the determination of this appeal. II. It,is claimed that in the construction of sewers, or in making contracts therefor, the city authorities do not act on behalf of the city, but only on behalf of the owners of adjoining lots ben-efitted thereby, and which lots are made chargeable with the — 374 — expense of the improvement, and that, therefore, the city is not liable for any damages to individuals caused by the prosecution of the work. We are unable to adopt these views. We think that the building and repairing of streets, gutters, sidewalks and sewers, are public municipal improvements, made by the proper officers or agents of the municipality, for the municipality, which in that respect represents the public, and that the character of such improvements is not changed by the fact that the lots benefited thereby are made chargeable with the expenses of the work. If such improvements are not of a public, municipal character, if they are only made for the benefit of private property and the owners thereof, we are at a loss to know upon what principle the legislature can authorize the municipality to make them. It does not seem necessary to elaborate this point, for it is believed that the propositions that such works are public improvements, and that the general rule is, as above stated, that the municipality constructing them is liable to respond in damages for injuries to persons or property caused directly by the negligence or unlawful omissions of its officers or agents in making the improvements, are too well established to require argument or citation of authorities to support them. It may be remarked, however, that many of the authorities referred to in this opinion sustain these propositions. III. It, is further claimed that because the work was done by contractors, and not directly by the city, and the injury complained of was the result of the acts of such contractors, the city is not liable for such injury, but that the plaintiff’s only remedy therefor is against the contractors. 'This claim is predicated upon two grounds; 1st, On general principles of law, and 2d, On a statute. 1. It is freely conceded, that had the sewer been constructed under an independent contract lawfully entered into by the city, that is to say, under a contract by which the city retained — 375 — no control over the mode or manner of the performance of the work under the contract, it would not be liable in this action. The doctrine is elementary, that to make one person liable for damages caused by the misfeasance or nonfeasance of another person, the relation of master and servant, or principal and agont, must exist between them. This doctrine is applicable to this case, or would be applicable to it, bad the sewer been built under an independent contract. But it was not so built. We have not the contract before us for the building of this sewer, but we must presume that it was made in accordance witb the requirements, and subject to the provisions of the statutes relating thereto. Without inserting here those requirements and provisions at length, it is sufficient to say that by virtue of them, the board of public works bad full and complete control of the mode and manner of the performance of the work by the contractor, during the progress thereof, and it was the duty of that board to reserve, in the contract for building the sewer, the right to finally determine all questions as to the proper performance thereof, or the doing of the work therein specified, and in case of imperfect or improper performance, to suspend the work, to order a re-construction thereof, or to re-let the work to some other party. Private and Local Laws of 1869, ch. 399, secs. 11 and 17. Id. ch. 401, sec. 12. The contract was not, therefore, an independent one, but the city, through its board of public works, retained control and direction of the work. And in such cases it has been held, and we think correctly, that if “an injury results from the negligence or misconduct of the contractor, or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of a principal and agent.” Cincinnati v. Stone, 5 Ohio St. (N. S.), 38; City of St. Paul v. Seltz, 3 Minn., 267. We conclude that the defendant is not relieved from liability in this action by reason of the fact that the sewer was con — 376 — structed by contract, unless it is so relieved by virtue of a statute which, will now be considered. 2. Section 30 of chap. 401, Private and Local Laws of 1869, is as follows: “ The city of Milwaukee shall not be held liable for damages or injury to any person or property incurred or happening at any place in said city where work is being done and improvements made on streets and side-walks, under contract, or while such work is under contract, but all such damage may be collected of the contractors, where they fail to keep up sufficient fences or protection guards to prevent damage or injury to persons or property.” A careful consideration of this section has convinced us that this case is not within the purview thereof. By its terms it only relieves the city from liability when the injury is incurred at the place where the work is being done. Such is not the injury here complained of. We apprehend that it cannot properly be said that this injury was incurred at the place where the sewer was being constructed, or where the earth and materials were deposited. We are inclined to think that the object of the law is to restrict the statutory liability of the city for injuries to persons and property of travelers in the streets, and we have seen that this action is not to recover for such injuries. The terms of the section prescribing the liability of contractors in certain cases, though perhaps not conclusive of the question, tend quite strongly to sustain the construction here suggested. IY. It is urged as a ground for the reversal of the judgment of the county court, that the city had no legal and sufficient notice of the existence of the nuisance which is alleged to have caused the injury complained of. There is abundant testimony in the case showing, or tending to show that two, members of the board of public works, and the city engineer' who had charge of the construction of the sewer, knew of its existence and dangerous character in ample time to have abated it before the injury was suffered. Such notice was notice to’ the city. This doctrine has been recognized in several cases — 377 — decided by this court. Ward v. The Town of Jefferson, 24 Wis., 342; Goodnough v. Oshkosh, Id., 549; Weisenberg v. Appleton, 26 Id., 56. But it is said that the city was entitled to a formal written notice, by virtue of sec. 7, ch. 401, Pr. and Local Laws of 1870. There are two answers to this position, either of which is fatal to it. 1st. A written notice is only recognized by that enactment for the purpose of making the adjoining lots chargeable with the expense of repairing the street, etc., and has no reference whatever to the liability of the city for permitting nuisances to remain in its street by means of which persons or property are injured. 2d. The act, by its terms, only relates to streets, etc., which are represented to be dangerous to animals or persons passing over the same." Hence it has no applicability to this case, for it is not claimed that the street was dangerous to travelers by reason of the obstruction complained of. Y. The last point which it is necessary to notice is the claim that the raised sidewalk west of the alley and near where the injury happened, contributed to the injury, and inasmuch as. that fact is not stated in the complaint, but the whole injury is therein attributed to the obstruction in the street and gutter, the judgment cannot be sustained. If the sidewalk was lawfully raised or lawfully maintained at its then height, there was certainly no more necessity for stating its presence there, than there was for stating the direction of the wind, the duration of the storm, or any other fact which might have had some connection with the injury. If the sidewalk was maintained unlawfully at its then height, upon the principles already decided in this case, the city was responsible therefor. In such case the injury was caused by the wrongful act or omission of the city in permitting the continuance of two nuisances. The complaint charges the injury to one of these, and the plaintiff’s testimony tends to prove the averment. The testimony introduced by the defendant tends to show — 378 — tbat the other nuisance had some influence in causing the injury, or rather that it was caused by both. The injury caused by the wrongful act or omission of the defendant, is the gravamen of the action, and the question as to whether it was caused by One such wrongful act or omission, or by two of them, cannot be very material. If, in an action for personal injuries, the complaint should aver that the same were caused by a blow inflicted by the defendant with a’club upon the person of the plaintiff, and if, after proof of the striking of the blow as alleged, the defendant should show that at the same time he struck the plaintiff another blow with his fist, and -that both blows were instrumental in causing the injury complained of, would such proof defeat the plaintiff’s right to recover under his complaint? Of course not. The court would disregard the variance as immaterial, or, if it deemed an amendment necessary, would order an immediate amendment of the complaint without costs, so as to conform the same to the evidence. In this case the alleged variance did not change the gravamen of the action, and could not, by any possibility, operate as a surprise upon the defendant. It was therefore immaterial, and the court was fully justified in disregarding it on the trial and directing a verdict to be found according to the evidence. Taylor’s Statutes, 1445, §§ 35 and 36. In such case the complaint may be amended to conform it to the facts proved either before or after judgment. Id., 1446, § 41. The only exceptions taken on the trial relate to the giving and the refusal to give instructions to the jury, and to the refusal of the court to order a nonsuit, and inasmuch as the rulings and instructions excepted to are in accordance with the views herein expressed, we are of the opinion that the judgment appealed from should be affirmed. By the Court — Judgment affirmed.