Daly v. Milwaukee Electric Railway & Light Co.

Oassoday, O. J. Counsel for the defendant contend that the complaint fails to state a cause of action because it does' not specifically allege any negligence of the defendant in operating the train or in the construction of the cars or the track or otherwise. It does allege that the defendant was only authorized to use its tracks and railway for transporting passengers. Had the injury resulted from the use of such passenger cars, there might have been some force in the objection. Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, 8 N. E. 460; Randle v. Pacific R. R. 65 Mo. 325. But the gravamen of the complaint is that the plaintiff was injured by reason of the defendant running freight cars upon its tracks without authority and in violation of law. The question whether an indictment would lie at common law against a corporation for a misfeasance was answered in the affirmative by the Queen’s Bench many years ago. Queen v. G. N. of E. R. Co. 9 Q. B. 315, 325. In that case it was said by Lord Denman, C. J., that “a corporation . . . may be guilty as a body corporate of commanding acts to be done to the nuisance of the community at large.” Id. 326. Thus, it has been held in Massachusetts that “a railroad laid out over and along a highway in such a manner as to obstruct it, without express statute authority or necessary implication, is liable to indictment as a nuisance.” Comm. v. O. C. & F. R. R. Co. 14 Gray, 93. See, also, State v. T. & B. R. Co. 57 Vt. 144; Evans v. C., St. P., M. & O. R. Co. 86 Wis. 597, 603, 57 N. W. 354. So it is well settled that if an individual, without fault on his part, suffers special damage by any unlawful [401] act in obstructing a biglrway, he has a right of action therefor, although the party doing the act is also liable to an indictment for the same. Thayer v. Boston, 19 Pick. 514, 31 Am. Dec. 159; Zettel v. West Bend, 79 Wis. 316, 319, 48 N. W. 379, and cases there cited. Thus it has been held in ETew York that “the construction and maintenance of a street railway by any individual or association of individuals without legislative authority is a public nuisance, and subjects those maintaining it to a private action in favor of any person sustaining special injury therefrom.” Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307. To the same effect, Beekman v. Third Ave. R. Co. 153 N. Y. 144, 152, 47 N. E. 277; Stamford v. Stamford H. R. Co. 56 Conn. 381, 15 Atl. 749; Wellcome v. Leeds, 51 Me. 313, 315. To the extent that the defendant exceeded its authority by running freight cars over its tracks without legislative permission, express or implied, it must be regarded as acting in violation of law, and hence answerable accordingly. This has, in effect, been repeatedly held by this court. Evans v. C., St. P., M. & O. R. Co. 86 Wis. 597, 603, 57 N. W. 354; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 513, 83 N. W. 851; Allen v. Clausen, 114 Wis. 244, 90 N. W. 181. Thus it is stated by a standard text-writer that “for personal injuries sustained by a person by reason of any nuisance in a highway, or injuries thereby inflicted upon his team or property, the person creating the nuisance, as well as the person maintaining it, is always liable in a civil action, if the person injured was in the exercise of ordinary care when the injury was inflicted; and no degree of care on the part of the person erecting or maintaining the nuisance will exempt him from liability.” 2 Wood, ETuisances (3d ed.) § 703. The theory is that, the act being wrongful, the party doing it is answerable for all the consequences that flow therefrom to a person who is not chargeable with negligence by reason of which the injury is inflicted. Id. The allegations of the [402] complaint, if true, are sufficient to authorize a jury to find that the plaintiff’s injuries were without fault on his part, and were actually caused by the running of the freight cars on the defendant’s tracks in violation of law; and hence the complaint states a cause of action. By the Gourt. — The order of the circuit court is affirmed.