Wilbert v. City of Sheboygan ( 1904 )

Marshall, J.

The liability claimed is predicated on the duty of the city in respect to its streets, created by sec. 1339, Stats. 1898. It does not seem to be contended by respondent’s counsel that actionable fault of appellant is alleged except in that it is stated the latter knew or ought to have known of the defective insulation alleged, and remedied the same before the occurrence complained of. On the other hand it is not claimed by appellant’s counsel but that, if the city was so circumstanced prior to such occurrence, it was actionably negligent. In that view it seems very little need be said in deciding the appeal. The allegations of the complaint are very specific as to the city’s knowledge of the dangerous condition which caused the death of respondent’s intestate, or negligence in not having such knowledge and removing such condition before such occurrence. • True, the charge is that it knew or ought to have known of such condition and applied the proper remedy because a sufficient length of time therefor had existed before the accident; but that charges the existence of the fact essential to the city’s liability most distinctly. If counsel for appellant apprehended there was fatal indefiniteness, because the length of time the defective insulation had existed was not stated, the remedy was by motion to make more definite and certain, not by demurrer.

It is suggested by appellant’s counsel that the defect was-such that knowledge thereof was obtainable only by inspection, and- that the city owed no duty to the public in that regard; that it was warranted in relying on the lighting company to comply with the terms of its privilege to use the streets as regards insulating its appliances, till knowledge was brought home to it of a failure in that regard by some circumstance not involving any duty on its part to inspect the electrical appliances for defects. Whether that be so does not affect the case as it now stands. The allegations of the complaint are broad enough to enable respondent to establish liability of the city on counsel’s view of the requisites thereof. It may be that when she comes to produce the evidence it will appear that the alleged defect was discoverable only by an inspection of the appliances by an electrician. If so, the position taken by appellant’s counsel will have to be passed upon. On the other hand, the evidence may show the alleged defective condition of the insulation to have been reported to-the city through its proper officers long before the death of the intestate, or that circumstances existed sufficient to charge-it with constructive notice of the danger long before such occurrence, independently of whether, it owed to the public the duty to inspect the appliances of the lighting company for defects. If it comes to the point where respondent must rely, to establish a cause of action, upon whether such duty existed under the circumstances, a very serious question will be presented for decision. We prefer to meet that after it shall have been passed upon by the circuit court. We see nothing-in the record to indicate that such court has yet done that. No such question has been heretofore suggested here, though, as indicated by the authorities cited in the brief of appellant’s counsel, it is not entirely new. Denver v. Sherret, 88 Fed. 226; Joyce, Electric Law, § 243.

Possibly appellant appealed for the sole purpose of obtaining a decision on the question above suggested, assuming-it was necessarily involved in the decision of the demurrer, since it might be inferred from the complaint that respondent’s cause of action is dependent upon a solution thereof in her favor. If so, the assumption is wrong. All reasonable inferences that can be drawn from the language of a pleading to support it are to be indulged in, rather than such as will defeat it. Miller v. Bayer, 94 Wis. 123, 68 N. W. 869; Benolkin v. Guthrie, 111 Wis. 554, 560, 87 N. W. 466; Thomson v. Elton, 109 Wis. 589, 597, 85 N. W. 425; Pfister v. Sentinel Co. 108 Wis. 572, 580, 84 N. W. 887; Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 427, 84 N. W. 159.

The order appealed from must be affirmed.

By the Court. — So ordered.