Brown v. Milwaukee Terminal Railway Co.

The following opinion was filed April 2, 1929:

Eschweiler, J.

There is no substantial dispute concerning the facts material for consideration on this appeal and further detailed statement of them is not necessary. The question presented is the narrow but troublesome one as to whether a person passing along a sidewalk on a public street in the city of Milwaukee, failing in no respect to exercise ordinary care for his own protection, injured by the blowing down of a dead tree standing between the sidewalk line and the curb of such public highway, may recover damages against an owner of the abutting premises who has had knowledge of the decayed and dangerous condition of such tree a sufficient length of time prior to the injury to have permitted of its removal.

The provision of the city charter of Milwaukee and of which we can take judicial notice (O’Connor v. Fond du Lac, 101 Wis. 83, 85, 76 N. W. 1116; Durch v. Chippewa County, 60 Wis. 227, 228, 19 N. W. 79), so far as *579 here material for consideration (found as sec. la, ch. 24), has long provided and still provides as follows :

“Whenever any injury shall happen to persons or property in the said city of Milwaukee, byreason of any defect or incumbrance of any street, sidewalk, alley or public ground, or from any other cause for which, the said city would be liable, and such defect, incumbrance, or other cause of such injury shall arise from, or be produced by the wrong, default or negligence of any person or corporation, such person or corporation so guilty of such wrong, default or negligence, shall be primarily liable for all damages for such injury, and the said city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person or corporation.”

Such provisions of the special charter of Milwaukee are the same in substance, so far as here material, with the general statutory provision, sec. 81.17, Stats., concerning the liability for highway defects in any town, city, village, or county.

The language of such .charter and statute has been before this court in a number of prior decisions, and it was early held that such provisions were not intended to indicate, and should not be construed as indicating, a legislative purpose to create any liability in and of itself or any new right of action, but merely to regulate the remedy for liabilities, if any, otherwise created or existing.

Cooper v. Waterloo, 88 Wis. 433, 60 N. W. 714, was an action for personal injuries caused by ah alleged defective sidewalk in the defendant village, the village asserting that it was not personally liable and that the owner of the adjacent lot was primarily liable, if any one, and that such owner should be made a defendant. Plaintiff refused to amend or bring in such owner as defendant and appealed from an order striking the cause from the calendar for such failure. The court said (p. 436).:

“It is to be remembered that at common law a town or village or an adjoining landowner was not liable for dam *580 ages sustained by reason of a mere defective highway therein —much less by reason of a mere defective sidewalk therein. There is no liability, therefore, except such as has been created by statute.”

The statute creating liability against a town, city, or village is then referred to, and it is said (p. 437) :

“This section does not undertake to create a liability against the adjoining lotowner, but merely to authorize an action against both the town, city, or village and the person whose wrong, default, or negligence caused the defect, in-cumbrance, or other cause of such injury.”

And further on:

“However this may be, we are convinced that it givep no new right of action, but merely regulates the remedy for rights of action otherwise created.”

The action was sent back for further proceedings against the village.

That case (p. 436) also cited with approval the case of Woodward v. Boscobel, 84 Wis. 226, 54 N. W. 332, where the village sought to evade liability for injuries on a defective sidewalk because of the provisions of its charter and ordinances placing the cost of making and repairing the sidewalks on the owner of the adjoining real estate, but it was expressly held (p. 231) that such provisions left not only the primary, but the entire, obligation upon the city to build the sidewalks and keep them in repair. It also held that such owner therefore could not be brought in on application of the defendant city as a party defendant and that such owner was “under no legal obligation to repair the sidewalk” (p. 232).

The question so presented in those two cases and also here squarely presented, namely, whether the primary duty is placed by law upon the municipality or upon the lotowners for the maintaining of the public highway in a safe condition for public travel, and held in those cases to be upon the municipality and not upon the lotowner-, has been repeatedly *581 so ruled in such cases as Fife v. Oshkosh, 89 Wis. 540, 543, 62 N. W. 541; also Sommers v. Marshfield, 90 Wis. 59, 61, 62 N. W. 937; and Toutloff v. Green Bay, 91 Wis. 490, 65 N. W. 168, where the distinction is pointed out, at page 491, between a situation where the lotowner may be liable for active negligence in placing an obstruction or making an excavation in the street or -sidewalk and that presented from a situation of a mere want of repair, and cites with approval (p. 492) the Cooper Case, supra. This latter case further reiterates the same doctrine and declares it to be the policy of our law to place upon the municipality the responsibility to keep the streets and sidewalks in safe condition for travel, and that full and certain protection is thereby assured to those injured by such neglect, and that the granting to such injured of a separate liability on the part of the property owner furnishes no additional protection and is an embarrassment rather than an advantage to him (p. 494) ; and again (p. 496) declares- that “there is no liability on the part of the lotowner to the passer-by for injuries resulting from mere lack of repair of the adjacent sidewalk.”

In Selleck v. Tallman, 93 Wis. 246, 67 N. W. 36, where an action for injuries on a defective sidewalk was brought against the lotowners, it was again declared that the duty of the lotowners to repair or-pay for the repairs is to the corporation, not to the traveler, and the action was held not maintainable (p. 248).

The question was again fully considered in Griswold v. Camp, 149 Wis. 399, 135 N. W. 754, an action against a lotowner for failure to comply with the ordinance of Milwaukee requiring him to keep icy sidewalks sprinkled v/ith ashes, etc., and the action was held properly dismissed as against the property owner (p. 403).

The same view as to the non-liability at common law of the lotowner is held in other jurisdictions, as instanced in Hanley v. Fireproof B. Co. 107 Neb. 544, 186 N. W. *582 534, 24 A. L. R. 382; Ainey v. Rialto A. Co. 135 Wash. 56, 236 Pac. 801, 41 A. L. R. 263.

The rule is generally stated as being that, where the duty is placed on the municipality to keep and maintain highways, then its control and power over the highway is exclusive and its responsibility cannot be evaded or shifted onto the abut-ters on the highway. Elliott, Roads & Streets (3d ed.) sec. 898; 41 A. L. R. 212, 217, notes; 24 A. L. R. 388, note.

The primary liability of the lotowner under the statute and charter provisions above cited and quoted, relied upon by respondent, can only arise when, by some independent active negligence on the part of the landowner, he himself creates a situation for which the municipality itself is not primarily responsible; That is the effect of the decision, relied upon by respondent, in Papworth v. Milwaukee, 64 Wis. 389, 25 N. W. 431, an action against the lotowner for damages to a passenger on the sidewalk because of insufficient trap or covering over a coal vault being constructed and maintained for the convenience of the lotowner; but the action there was held rightly brought against the city for its failure to keep the sidewalk in suitable repair, and that any negligence of the lotowner would not relieve the city. And in McClure v. Sparta, 84 Wis. 269, 54 N. W. 337, where a city permitted a lotowner to insert a hatchway for his own convenience and negligently failed to guard the opening, it was held that that would not relieve the city of its liability and that such failure by the landowner was not an independent, proximate cause (p. 273). It is further illustrated in Smith v. Clayton C. Co. 189 Wis. 91, 93, 206 N. W. 67, where a contractor stretched a hose across the sidewalk and was held liable to the injured traveler.

While it is true that the cases above cited from this court and the many that may be found elsewhere directly concern situations where the defect is in the sidewalk used for public *583 travel, yet the general rule is not confined to that narrower proposition, nor to defects upon the specific portions of the highway used for foot or vehicle travel. This is well illustrated in such cases as Jensen v. Oconto Falls, 186 Wis. 386, 202 N. W. 676, where-a twenty-two feet long culvert pipe was placed on the side of the traveled highway; citing Carlon v. Greenfield, 130 Wis. 342, 110 N. W. 208, where a mortar box used in repairing culverts was left near the road; and Berg v. Auburn, 140 Wis. 492, 122 N. W. 1041, where twelve-foot iron pipes were left by the town authorities on the side of the road; and in Cremer v. Portland, 36 Wis. 92, 96, where a large stump of a tree was left in the road; all were sufficient to establish municipal liability.

The precise question here involved, namely, whether the abutting owner or the municipality is liable for damages arising from the dropping of limbs from or the fall of a tree located, as this was, within the limits of a public highway, has been passed upon in a number of cases in other states and the liability of the municipality quite generally upheld and of the abutter denied. This line of cases is well illustrated in Zacharias v. Nesbitt, 150 Minn. 369, 185 N. W. 295, 19 A. L. R. 1016, where the abutting owners were held not liable for the injuries from a falling tree located on a duly established county road, although there recognizing his right to appropriate the tree at any time and his ownership in the tree itself. See a long list of cases to the same effect in the note in 19 A. L. R. p. 1021. Further cases may be found in note p. 405, 39 L. R. A. n. s.; note p. 649, 20 L. R. A. n. s.; note p. 817, L. R. A. 1918 F.

For many years now the legislature has provided on an extensive scale for the planning for, the management of, and the improvement of state, county, and city parks, and has constantly broadened the scope of such provisions and expressly authorized the creation by municipalities of .appropriate boards with officers and employees to carry on the *584 work. Among such provisions of ch. 27, Stats., may be cited sec. 27.08 (10) (a), permitting the appointment of a city forester, who may, sub. (c), under direction of the board, “plant, transplant, remove, trim, spray and otherwise care for and protect all trees and shrubs on or in that part of every street, the grade of which has been established, lying between the lot line and the curb.”

There were quoted in the part of the answer stricken out below, and there are found in the record, copies of certain ordinances certified to by the city clerk. The trial court refused to permit such to be considered in the disposition of the case. Such rulings we consider erroneous. Though we cannot take judicial notice of such ordinances (Wergin v. Voss, 179 Wis. 603, 609, 192 N. W. 51, 26 A. L. R. 933; O’Brien v. Fred Kroner H. Co. 175 Wis. 238, 241, 185 N. W. 205; Osceola v. Beyl, 168 Wis. 386, 388, 170 N. W. 252), we shall assume, for the purpose of disposing of this question, that such quoted ordinances were in effect, rather than send the case back for them to be formally offered and received.

These ordinances make many provisions in line with the powers given by the statutes supra. We cite for present consideration but the following:

“Section 1282.1 (Ord. 50, July 1, 1918). No person, corporation or association shall plant, cut, prune or remove any living tree or shrub in a public highway in the city of Milwaukee, or cut, disturb or interfere in any way with the roots of any tree in such public highway, or spray any such trees or shrubs with any chemicals or insecticides without written permit of the board of park commissioners.”

“Section 1282.2 (Ord. 50, July 1, 1918). No shade or ornamental tree or shrub shall be planted in any of the public highways of the city of Milwaukee until such tree or shrub and the place where it is to be planted shall have first been approved by the board of park commissioners of the city of Milwaukee and a permit granted by said board therefor.”

*585 “Section 1232.6 (Ord. 50, July 1, 1918). No person, corporation or association shall prevent, delay or interfere with the board of park commissioners or its employees in the planting, pruning, spraying or removing of a tree or trees or shrubs living or dead, in that part of any street lying between the lot line and the curb.”

“Section 1277. No tree which in the opinion of the commissioner of public works may be liable to fall upon any sidewalk, street or building near to such tree shall be permitted to stand upon or near any sidewalk in this city.”

Although the first above quoted refers only to living and not to dead trees, and sec. 1232.6, supra, to living or dead trees, we think the evident purpose of the ordinances, as a whole, is to cover and include the entire subject matter, both the quick and the dead, and that this particular tree was within the control of the city.

The plaintiff, therefore, having elected to sue the abutting landowner on a claim of a breach of duty by him resulting in damages, and it appearing as a matter of law from what is said above that it is the municipality and not the landowner upon whom the primary responsibility is placed, there is no foundation for the judgment against the defendant as entered below.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.

The following opinion was filed April 8, 1929: