Stephani v. City of Manitowoc

NewmaN, J. It is claimed that the complaint is demur-rable on two grounds: (1) That it does not state facts which show that the bridge was insufficient; and (2) that it does show affirmatively that the negligence, if any, which caused [471] the death of the plaintiff’s decedent was the negligence of the bridge tender, who, being -ultimately liable, should have been joined as a defendant in the action. No doubt it was the duty of the defendant to make its drawbridge reasonably safe and sufficient for the safe passage of travelers upon it, both by day and in the night time. It was built for a drawbridge. It was contemplated that the draw would often be open at times when travelers would be crossing upon the bridge. It is in relation to this function that its sufficiency is to be considered. If it was not reasonably safe as a drawbridge without some barrier to warn travelers and so protect them from falling from the bridge when the draw was open, then the city was in fault in not having provided such a barrier; or, if it was not reasonably safe and sufficient as a drawbridge in the night time without being lighted, then it was the duty of the city to light it in the night time, — for the city had not completely done its duty to the public until it had made that drawbridge reasonable safe and sufficient for the passage of travelers at all times. If the want of such a barrier or light was a defect at all, it was a defect in the structure of the bridge itself. Reasonable care and diligence on the part of the city would easily have remedied it. No doubt so simple a caution as a mere pole placed across the passageway would have prevented this accident. If the city had provided suitable barriers and lights, and the bridge tender had omitted to use them, that would be a different case. It would be the case which the defendant argues. It would be like the question decided in Butterfield v. Boston, 148 Mass. 544, which would be a strong authority if applicable. Possibly the question whether the absence of barriers and lights was an insufficiency in the bridge, as a fact, is not so clear as to make the question of negligence one of law for the court. The proper inference of fact to be drawn from the facts stated may not be so clear as that the court may [472] draw it.. But in either view of that question the complaint states sufficient facts to justify the inference of negligence by the proper trier. The rule which requires notice to the corporation of defects in its highway or bridge has no application in such a case as this. It is not like the case of an accident to the bridge or a mere want of repair. The defect is the lack of completion of the bridge for the use for which it was intended, and is obvious. The city was under an absolute duty to make this drawbridge safe to public travel. It was bound to use reasonable diligence and care to that end. It was bound to see that the open draw was carefully guarded, so as to be reasonably safe. It was not absolved from this duty by the employment of a competent bridge tender to operate the draw of a bridge which it had left incomplete and unsafe. Wilson v. Troy, 135 N. Y. 96-102, and cases cited. The complaint fails to show that the bridge tender will ultimately be liable over to the city. It fails to show that the condition of the bridge which caused the accident was in any way his fault. TIis duty, so far as appears, was to operate the bridge in the condition in which the city provided it. It was no part of his duty to complete it or to furnish it with barriers and lights. So long as he performed well the duty which was within his employment, he could not become liable over to the city for a loss which is the result of its own fault. Tie is not a guarantor of the city against loss which it incurs by its own want of care. So the complaint does not disclose any defect of parties defendant. By the Court.— The order of the circuit court is affirmed.