Cairncross v. Village of Pewaukee

TayloR, J. The learned counsel for the respondent,"upon the argument in this court, insists that the demurrer was rightfully sustained upon two grounds: Burst, that the facts stated fail to show that there was any defect in the street such as would render the defendant liable for an injury resulting to a traveler therefrom; and, second, that the complaint does not sufficiently allege that notice was given to the village of the accident and the cause thereof, as required by the provision of sec. 1339, E. S. We think the allegations of the complaint, if proved ip. their entirety, would at least present such a case as to make it the duty of the trial court to submit the question to the jury to determine whether the steamboat was unlawfully remaining in the street at the place mentioned when the plaintiff drove near or past it, and also whether its presence in the street was such an object as would naturally frighten horses passing by the same. It may be admitted, for the purpose of determining the sufficiency of the complaint in this case, that the steamboat mentioned in the ■ complaint was on wheels for the purpose of being transported from one place to another along the highways and streets; that the owner of the boat had the right to so transport it along [70] sucb highways and streets; and that the village would not be liable to the plaintiff for any injury to his team and wagon resulting from the mere presence of such steamboat passing along such street. There is, however, enough in the complaint which tends very strongly to show that, although the owner of the boat was transporting it on wheels along said street, and that he had the right to so transport the same, still at the time in question he had unnecessarily permitted the same to remain in the street stationary, in an improper and dangerous position, and for a much longer time than was reasonably necessary for the mere purpose of transporting the boat from one. place to another along said street. The facts stated are certainly sufficiént to raise the question of an improper use of the street by the owner of the boat at the time in question. The other allegations in the complaint are also sufficient to show that what the owner of the boat did in the street was known to and permitted by the defendant village, and therefore, if the boat was an obstruction to the street, the village would be liable for the damages resulting therefrom. The purpose for which a thing is in the street must and does determine in many cases whether it is there rightfully or not. Take the case of Bloor v. Delafield, 69 Wis. 273, where this court held that the mortar-box was an obstruction in a highway when placed within the way as a place of deposit temporarily; yet if such mortar-box had been placed on a wagon and carried along said highway for the purpose of being transported from one place to another in the usual way, it might have been equally an object in the way which would naturally frighten horses, but there can be no doubt that in such case it would have been rightfully in the way, and neither the owner nor the town would have been liable for an injury resulting from its being there. So in the case of Hughes v. Fond du Lac, 73 Wis. 380, the street roller, if it had been in use on one of the streets of the city, or had been in process of transportation from one. [71] part of the city to another, 'would have been lawfully on the Street; and, though equally calculated to frighten teams passing, no injury resulting therefrom could have been charged to the city or to those in charge of it. The liability of a town or other municipality for permitting objects which are naturally calculated to frighten teams to remain within the limits of a highway arises out of the fact that they are permitted to be there for an unlawful purpose. See note to this case in 10 L. R. A. 473.— Rep. The allegations of the complaint in this case are clearly sufficient to raise at least a question of fact to he determined by the jury, that at the time in question this steamboat was unlawfully within the street in question. The questions raised in this case have been very ably discussed by the supreme court of New Hampshire in Graves v. Shattuck, 35 U. H. 257, and Winship v. Enfield, 42 N. H. 197, 217, and that court arrived at the same conclusion that this court did in the cases above cited and in the cases of Foshay v. Glen Haven, 25 Wis. 288; Little v. Madison, 42 Wis. 643; Barstow v. Berlin, 34 Wis. 357; and Kearney v. C., M. & St. P. R. Co. 47 Wis. 153. The point raised as to the sufficiency of the notice, we think, is not well taken. A general allegation that the notice required by the statute was given within the required time is clearly sufficient. Ho injury can accrue to the defendant for want of a more particular statement as to the particulars of the notice. The notice itself, if given, must he in the possession of the defendant, and its sufficiency must be known to the defendant. It cannot be injured, therefore, by the fact that the form of the notice is not set out at length in the complaint. By the Court.— The order of the circuit court is reversed, and the cause remanded with direction to the circuit court to overrule the demurrer.