Hincks v. City of Milwaukee

Oole, J. The complaint, in substance, charges that the plaintiff, while driving along Elizabeth street in the city of Milwaukee, in the evening of the 26th of October, 1877, with his wife, in a carriage, without fault or negligence on his part, was, with his wife, thrown from the carriage in which they were riding, and both injured, in consequence of the carriage being upset by a heap of gravel placed in the street. It is al [564] leged that the gravel was deposited in the street by a contractor with the city, who was engaged in constructing a sewer; that the night was dark, and the gravel had been deposited in the street by the agents and servants of the city negligently and carelessly, and the same was negligently and carelessly left by the city without any guards, light, fence, or other sign about the same to warn travelers upon the street of ips presence. The contract under which the sewer was constructed, is annexed to and made a part of the complaint. It contains stipulations requiring the contractor, while in the performance of the work, to put up and maintain, in the night time, such barriers and lights as will effectually prevent the happening of any accident in consequence of the digging up, use, or occupying of the street for the purpose of making the improvement. According to the established doctrine of this court, the complaint states an actionable injury, unless the city is exonerated from liability in the premises by virtue of §§ 1 and 2, ch. 20 of the charter (see ch. 184, Laws of 1874), which reads as follows: “ Sec. 1. Whenever any injury shall happen to persons or property in the said city of Milwaukee, by reason of any defect or incumbrance of any street, sidewalk, alley or public ground, or from any other cause for which the said city would be liable, and such defect, incumbrance or other cause of such injury shall arise from or be produced by the wrong, default or negligence of any person or corporation, such person or corporation so guilty of such wrong, default or negligence, shall be primarily liable for all damages for such injury; and the said city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person or corporation. “ Sec. 2. The city of Milwaukee shall not be held liable for damages or injuries to persons or property incurred or happening at any place in the said city where work of any kind or nature is being done in or on streets or sidewalks, by con [565] tractors under contract with the hoard of public works, in consequence of the condition of such streets or sidewalks, arising from the doing of such work. But if the contractors doing such work shall fail to keep up sufficient fences or protection guards to prevent damage or injury to persons or property, or shall be guilty of other negligence in doing such work, and if injury to persons or property occur by reason of such default of such contractors, such contractors shall be liable in an action by the person so injured.” By the first section it will be seen, that when the injury happens by reason of any defect or incumbrance in the street produced or caused by the wrong or negligence of any person or corporation, then such person or corporation is primarily liable, the city only being liable to make compensation after all legal remedies have been exhausted to collect the damages of the wrongdoer. "We have no doubt of the validity of this provision of the charter; and did it appear that the case came within it, the complaint would surely be defective for not alleging that the remedy against the contractor had been exhausted. Eor while it may be true that the general rule of law is, that a party injured may, at his election, proceed against any one of several parties chargeable with the wrong, yet where one party is made responsible for the misconduct of another, by reason of some relation he holds to such other party, there would seem to be no injustice in requiring the injured party first to exhaust his remedy against the party really guilty of the misfeasance or default. Especially should this be so in respect to a municipal corporation which is made responsible for the negligent acts of others by virtue of its duty to keep its streets in a reasonably safe condition. But the learned counsel for the plaintiff contends that this section does not apply to a case where the defect or obstruction in the street is produced by a party constructing a sewer, or making some public improvement under a contract with the city; but was intended to include a case where the obstruction was placed in [566] the street by the owners of adjoining lots, while making some improvement for their own convenience or benefit, with which the city had nothing to do. We are inclined to think that this construction of the section is the proper one, and that it has no application to the case stated in the complaint. True, the language is quite broad; it speaks of a defect or other cause of injury, produced by the wrong, default or negligence 11 of any person or corporation.” But these general words must, we think, be restricted to a case where the party causing the defect holds no contract relation with the city; as where the owner or occupant of thfe adjoining lot creates the nuisance, as in Hundhausen v. Bond, 36 Wis., 30, and where the city would otherwise be primarily liable to make compensation in the absence of such a provision. Consequently, we hold that the complaint does not state a cause of action within the purview of section 1. The second section undoubtedly extends to the case stated in the complaint, and, if valid, entirely exempts the city from all liability for the damages sustained by the plaintiff. That section makes the contractor alone responsible for the injury occasioned by his negligent act. The validity of this provision is challenged by the plaintiff’s counsel, who insists that it is an attempt on .the part of the legislature to grant a privilege or immunity to the city of Milwaukee against a general rule of law, while all other municipal corporations are left subject to its operation. Such an enactment, he claims, is odious and unjust, and is distinctly condemned by the doctrine of this court in Durkee v. Janesville, 28 Wis., 464. It seems to us this objection is well taken, and must prevail. In the Durkee case, the charter of the city of Janesville declared that no costs should be recovered against the city in any action brought to set aside any tax assessment or tax deed, or to prevent the collection of taxes'or assessments. The charter in that particular was held void, both upon principles of constitutional law, and as being in violation of sec. 9, art. I of the bill of rights of our [567] state constitution. The opinion of Chief Justice Dixon in the case is so clear and exhaustive upon the question, that nothing further need he said upon the subject. The very able city attorney attempted to distinguish this from the Durkee ease, but failed to do so to our satisfaction. It seems to us that the cases are not distinguishable in principle. If the provision of the charter of Janesville, which exempted the city from the payment of costs in that class of cases, without reference to the merits of the case, was partial, arbitrary and unjust, it seems to us that sec. 2 is of the same character. This court has uniformly held that municipal corporations, as well as towns, were required by statute to keep their streets and sidewalks in a reasonably safe condition for the use of the public, and were responsible in an action for an injury resulting from a failure to perform that duty. 'Whether that same liability is imposed upon a municipal corporation at common law, is a question we need not consider. In this state the liability has been founded upon statute. And we think the better rule of law is, that where a dangerous obstruction is negligently left in a traveled street, without proper lights or guards, by a contractor under the city who is engaged in constructing a sewer, or making other public improvements, the city is liable to a person injured thereby. Doubtless, it would be competent for the legislature to make the contractor in such a case primarily liable for injuries occasioned by his wrongful acts; but we do not think that the corporation can, by a special act, be exempted from all liability in the premises. It follows from these views, that section 2, above cited, affords no defense to this action. We think the order of the county court overruling the demurrer to the complaint must be affirmed. By the Court. — Order affirmed. Evan, O. J., took no part.