Zimmer v. Schmitt

RoseNberry, J. While the circuit court assigns no reason for reversing the judgment of the civil court, the reversal must have been based upon the fact that the testimony established that the defendant Schmitt was negligent in the manner in which he filled the trench. The circuit court [433] dismissed the complaint as to the city of Milwaukee, and there is no appeal from that part of the judgment. We think the circuit court was clearly right in holding that the evidence established the negligence of the defendant Schmitt. It is claimed that because the defendant Schmitt filled the trench in the ordinary and usual way he cannot be charged with negligence. The permit itself specifies in express terms how the trench shall be refilled; that is, it shall be done in accordance with the conditions set out in the permit and the specifications prescribed by the public authorities. The specifications provide that in back-filling for trenches made in macadam pavements, after the trench is filled within three feet from the top in the manner prescribed, the next eighteen inches must be filled with gravel or sand thoroughly tamped in layers not exceeding six inches in depth. The next eighteen inches must be composed of crushed stone thoroughly tamped in layers not exceeding six inches in thickness, and new material only shall be used in the replacing of the macadam pavement proper. It clearly appears that there was no effort made by the defendant to comply with these provisions. The accident was caused by reason of the fact that these requirements were not complied with, and instead of being filled with sand and crushed stone the trench was filled with soft clay, and as a consequence the wheel of plaintiff’s automobile dropped into the depression and caused the damage complained of. The trial court found that “the said street was out of repair by virtue of the condition of said ditch at the time of the accident.” We think the evidence clearly established the fact that the highway at the point in question was defective by reason of the defendant’s negligence and conduct in failing to fill the trench as described by the terms of his permit. It is also claimed that as a matter of law the plaintiff is guilty of negligence on the undisputed evidence. This [434] claim arises from the fact that plaintiff testified that he saw the earth in the street; that he did not slacken the speed of his car; and that at the time he struck the place in question he was driving at the rate of twelve miles an hour. We have examined the evidence, and it cannot be said as a matter of law that plaintiff was guilty of negligence which contributed to the injury. The defective character of the street was due mainly to the filling which defendant had placed in the trench, contrary to the terms of his permit. It does not appear that plaintiff knew of the character of the filling or could have known it by such observation as he was able to make from his automobile. The danger not being open and obvious or apparent, under the circumstances of this case the plaintiff had a right to assume that the trench had been filled in the manner prescribed by law and therefore was reasonably safe and not in a defective condition. The facts in this case distinguish it from Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629. In that case a culvert was being replaced, leaving an opening in the highway about eight feet in width and nine feet in depth. Barriers were erected on either side of the opening, consisting of a single sixteen-foot fence board extending across the highway and nailed to posts, and the plaintiff drove through the barriers into the opening; the danger was open, obvious, and apparent. Here the defect consisted of a comparatively narrow break in the surface of the street in which there appeared to be earth, and 'there was nothing to indicate to the approaching driver that it was soft or that the place was unsafe for ordinary public travel. By the Gourt. — Judgment affirmed.