Kittredge v. City of Milwaukee , 26 Wis. 46 ( 1870 )

Paine, J.

We have no doubt that the provisions of section 120 of chapter 19 of the Revised Statutes, imposing upon towns a liability for any damages resulting from the insufficiency of highways, are applicable to the city of Milwaukee. Section 126 expressly declares that all the provisions of that chapter shall be applicable to all parts of the state, except where special provisions, inconsistent therewith, are made in respect to particular towns, counties, cities or villages. No such inconsistent provisions exist in the charter of Milwaukee. It is true that there, as in all other cities, a different mode is provided for laying out, constructing and regulating highways, from that which is provided for the towns. But this difference is designed mainly to meet the increased demand for facilities for travel, and for care and attention to the highways, which exists in cities. In the absence even of any express declaration of the legislative intent, it would be extraordinary to infer, from this difference, any design to withdraw the protection of the general provisions of this chapter, so far as they are applicable, from those very points where such protection is most needed. But since the legislature has taken care to provide that they shall be applicable to all parts of the state, except where there is some special provision to the contrary, there is no room for argument upon the subject.

Nor have we any doubt that the street commissioners are to be regarded as the officers and agents of the city, for whose default, in this respect, the city is responsible. The city is divided into wards, and the commissioners are called ward officers. This is for a convenient and systematic division of duties and labors. Notwithstanding this, they are to be regarded as representing the city, and as its officers and agents. In truth, the charter expressly makes the commissioners “ at all times subject to the control and direction of the common council.”

The only other ground relied on for sustaining the demurrer was, that it appeared on the face of the complaint that the alleged defect in the highway consisted of an obstruction created by a part of the track of a horse railroad, and that, therefore, the horse railroad company was liable instead of the city. The complaint only alleges that the obstruction consisted of a stringer and rail, raised about five inches above the surrounding surface of the street. It does .not say that it was a part of the track of a horse railroad, or explain in any manner how it came there. And upon the face of the complaint, we could not assume such to be the case. But the counsel for the plaintiff concedes, in his printed brief, that it was, in fact, a part of a track of a horse railroad, the use of which had, for some time, been abandoned, and parts of the track taken up. But he contends that even though the railroad company might be liable over to the city, the city is still primarily liable for any injury occasioned by the insufficiency of the street. And the authorities cited, as well as the statute, sustain this conclusion.

By the Court. — The order overruling the demurrer is affirmed.