Selleck v. Tallman

Maesitall, J. W. R. and F. D. Tallman were joined as defendants because they were the owners of the lot in front of which the alleged defect existed. By the charter of the [247] •defendant city, it has power to establish sidewalks and determine their width and character and the manner and method of construction. It is made the duty of each lot owner to construct such walk in front of his property in accordance with such determination, and to keep the same in repair; and on failure so to do, after due notice as provided in the charter, the municipality is authorized to perform the work at such lot owner’s expense, and, on his failure • to pay such expense within the prescribed period, the city is •authorized to charge the same as a tax against the property. The charter also provides- that “ whenever any injury shall happen by reason of any defect in any . . . sidewalk . . . from any cause for which the city would be liable, and such defect shall arise from, or be produced by, the wrong, default or negligence of any person . . . other than such city, such person ... so guilty . . . shall be primarily liable for all damages for such injury.” The complaint contained appropriate allegations to constitute a cause of action against defendants W. H. and E. E. Tollman, if, under the charter of the city, a lot owner who violates the provisions of such charter in respect to keeping the sidewalk in front of his lot in a proper state of ■repair is liable to a person for an injury received by such person, while passing over such walk, by reason of its unsafe condition for the public use. Such defendants demurred to the complaint on the ground that it fails to state facts •sufficient to constitute a cause of action against them. The demurrer was overruled, and an appeal taken to this court. The question of whether the complaint states a cause of .action against appellants must be decided in their favor; following Toutloff v. Green Bay, 91 Wis. 490, where there is a very full discussion of the subject in the opinion of the court by Mr. Justice Wixslow. The charter provisions there •considered and construed are the same, in all essential particulars, as those relied upon by respondent here. This court held, [248] after careful consideration, of the matter, in effect: (1) That cases where travelers are injured through active negligence of lot owners or others in obstructing sidewalks or making excavations therein should be distinguished from cases of failure to repair; that it is to the former class of cases, not the-latter, that the charter provision applies, to the effect that when an injury is caused to a person by reason of a defective sidewalk, from any cause for which the city would be liable, and the cause of the injury arises from, or is produced by,, the wrong, default, or negligence of any person other than such city, such person shall be primarily liable to the injured party. (2) That charter provisions of the character of those under consideration do not impose an absolute liability on the lot owner to keep the sidewalk in front of his. property in a proper state of repair for the public use, but, merely require him to do so or to pay the expenses incurred by the city in respect to it; that the duty of the lot owner is to the corporation, not to the traveler; that the duty to the traveler is one owing by such corporation, and the obligation of the lot owner to repair the sidewalk or pay the: expense of it is merely one imposed by such corporation as a means of carrying out its public duty. Therefore the rule-that, where the law imposes a specific burden upon one person for the benefit of another, an action lies in favor of the-latter against the former in case such other is damaged , through neglect on the part of such person in respect to the performance of such duty, does not apply. By the CJowrt.— The order of the circuit court is reversed,, and the cause remanded with directions to sustain the demurrer to the complaint.