Colby v. City of Beaver Dam , 34 Wis. 285 ( 1874 )

Cole, J.

The liability of a city for damages resulting from a defective walk which such city under its charter was bound to keep in repair, has been so frequently affirmed in this court that the law upon that question may be deemed settled. We have not been referred to any provisions in the charter of the defendant which exempt it from the operation of the general rule. 'Without dwelling upon the point, therefore, we assume that the defendant was bound by law to keep its streets, and such sidewalks as it had ordered and adopted, in proper repair for the safe and convenient passage of all persons having occasion to pass over them. And if it has neglected to perform that duty, and has failed to repair a sidewalk after notice of the defect, it is liable for injuries occasioned by the defect and insufficiency of the sidewalk. This proposition is not open for discussion in this court; and the only question is, whether there was any error in the rulings of the court below which should reverse the judgment. On the trial, the plaintiffs offered in evidence two ordinances adopted by the common council in the months of June and August, 1863, establishing the grade and for the construction of a sidewalk on that portion of College Street where the plaintiff Mrs. Colby was injured. The admission of these ordinances in evidence was objected to, on the ground that it did not appear that they had ever been published and recorded as required by the provisions of the city charter. In point of fact it did appear that both ordinances were published in a weekly newspaper, and that they were recorded in the book of ordinances of the city. It is true, the publisher of the newspaper, in the affidavit constituting the proof of publication, calls them “notices.” In a.certain sense they were notices. But the fact that the affidavit speaks of them as “notices,” instead of using the more technical term “ ordinances,” does not vitiate the proof of publication. There were no irregularities that we can discover in the ordinances establishing the grade of the street and directing the construction of the sidewalk; and if there were, it is' questionable if the city could take advantage of them after having recognized the walk and used it for several years. And under the provisions of its charter we think the city was bound to repair any defect in the walk which endangered the safety of travelers. Express power is conferred upon the common council to lay out streets, to establish grades, and to direct the manner in which sidewalks shall be constructed in the first instance; and when repairs become necessary, the street commissioner is required to see them made. It is said that the city authorities had no power, under its charter, to repair a sidewalk which was unsafe and insufficient, or to direct it to be repaired, unless it was one constructed by the city. Sec. 7, ch. VI, provided that whenever the street commissioner should deem it necessary to repair any sidewalk constructed by the city within its limits, when it was out of order, the commissioner should direct the owner or occupant of the lot adjoining the walk to repair it; and if the repairs were not made within the time and according to the manner prescribed, the commissioner was to cause them to be made at the exjoense of the lot. Oh. 224, P. & L. Laws of 1871. This applied to all sidewalks which the city had ordered to be built and over which it exercised care and control. The doctrine laid down in the cases of The Mayor, etc., of Albany v. Cunliff, 2 Coms., 165, and Peck v. The Village of Batavia, 32 Barb., 634, to which we are referred by the counsel for the defendant, has no application. In the former case, while the city built the bridge, yet the “ Pier Company ” had the care and control of it, and were bound to keep it in repair. And the remedy, to a person injured in consequence of the negligent and defective manner in which the bridge was built, was held to be against the owners, who were bound to maintain and keep the bridge in repair. In the other case the court decided that it was nowhere in the village charter made the duty, imperative or discretionary, of the corporation, to make and repair the sidewalk; and therefore that the corporation was not liable in damages to an individual for injuries sustained in consequence of the defective condition of a sidewalk. The imperative duty was imposed upon the defendant by the provisions of its charter, to keep its sidewalks in a safe condition ; and it is answerable for an actionable defect in them.

In this case it is claimed that a new trial should have been granted, for the reason that the city authorities had no notice that the walk was out of repair.

There was testimony given on the part of the plaintiffs which tended very strongly to show that the sidewalk, where Mrs. Colby was injured, had been in a dangerous and defective condition for a long time; that the planks were loose, and the stringers upon which the planks were laid were almost entirely decayed, so that they would not hold a nail; and that the officers of the city had actual notice of its condition long enough before, the accident to have repaired it. The court directed the jury that they must find from the evidence, either that the city authorities had actual knowledge of the defect in the walk, or that it had existed for such a length of time that, by the exercise of reasonable care and diligence, the authorities would have discovered it; and that in the latter case knowledge might be presumed. This was substantially the rule laid down in Goodnough v. Oshkosh, 24 Wis., 549. The insufficiency in the walk was of such a character that the slightest attention on the part of the city officers would have enabled them to see it. And the evidence tends to prove that it had been in this unsafe condition for many months. There was ample testimony from which the jury might have found that the city authorities had actual knowledge that the walk was out of repair; and the city must be held liable for damages caused by their neglect to perform their duty. This disposes of all the questions in the case which we deem it necessary to notice.

By the Court. — The judgment of the circuit court is affirmed.