Rep. 39, 82 N. W. 343; Winter v. Winter, 101 Wis. 494, 77 N. W. 883; Price v. Dietrich, 12 Wis. 626; Lannon v. Hackett, 49 Wis. 261, 5 N. W. 474. Pulp Co. 102 Wis. 301, 72 Am. St. Rep. 878, | Fields v. Mundy, 106 Wis. 383, 80 Am. St. 78 N. W. 412; Gatzow v. Buening, 106 Wis. 1, 49 L.R.A. 475, 80 Am. St. Rep. 17, 81 N. W. 1003; Malloy v. Chicago & N. W. R. Co. 109 Wis. 29, 85 N. W. 130; O'Connor v. Fond du Lac, 109 Wis. 253, 53 L.R.A. 831, 85 N. W. 327; Troschansky v. Milwaukee Electric R. & Light Co. 110 Wis. 570, 86 N. W. 156; O'Donnell v. New London, 113 Wis. 292, 89 N. W. 511; Wysocki v. Wisconsin Lakes Ice & Cartage Co. 125 Wis. 638, 104 N. W. 707; Hoffmann V. Milwaukee Electric R. & Light Co. 127 Wis. 76, 106 N. W. 808, It destroys the right to proceed in the courts of this state. Eingartner v. Illinois Steel Co. 103 Wis. 373, 74 Am. St. Rep. 871, 79 N. W. 433; nicipality under such circumstances does not exist at common law, but is of statutory origin. So, the court in Wysocki. v. Wisconsin Lakes Ice & Cartage Co. 125 Wis. 638, 104 N. W. 707, in construing the statute involved in ARP V. ALLIS-CHALMERS Co., distinguished that statute from § 1339, saying that under the latter section the notice is required to be served in all cases before any right of action accrues, while under § 4222 the notice is not a condition precedent to a cause of action, but a condition in the nature of a limitation upon a right existing at common law; the cause of action itself not being dependent upon the statute at all. The distinction is still further illustrated by O'Connor v. Fond du Lac, 109 Wis. 253, 53 L.R.A. 831, 85 N. W. 327, holding that a provision of a municipal charter that no action shall lie or be maintained against a city on contract until the claimant shall have presented to the common council a statement of his claim is a statute of limitations, and the failure to comply therewith must be raised by answer or demurrer. The point of the distinction is that the right of action on contract against a municipality exists at common law, and is not created by statute. The court took occasion in this case to correct the error into which the court fell in Weed & G. Mfg. Co. v. Whitcomb, 101 Wis. 226, 77 N. W. 175, and Ryan v. Chicago & N. W. R. Co. 101 Wis. 506, 77 N. W. 894, of treating a statutory condition to the enforcement of a common-law right as a condition of the right itself, thereby confusing a limitation statute acting on the remedy only, which may be and is waived by failure to insist upon it by answer or demurrer, with a statutory condition to the existence of a right; as, for instance, one necessary to a cause of action against a municipality, for compensation, for an injury caused by a defective highway, under § 1339. A further distinction on this subject is pointed out in O'Donnell v. New London, 113 Wis. 292, 89 N. W. 511, holding that It applies to nonresidents. Winter v. Winter, supra; Carpenter v. Murphey, 57 Wis. 541, 15 N. W. 798; Austin v. Saveland, 77 Wis. 108, 45 N. W. 955; Pereles v. Leiser, 119 Wis. 347, 96 N. W. 799. Winslow, J., delivered the opinion of the court: This action was commenced August 10, 1904, and was brought by the plaintiff to recover damages for personal injuries suffered by the plaintiff while in the employ of the a provision of a city charter which in effect requires claims or demands against the city to be presented to the common council, and provides that disallowance of the claim by the council shall be final and conclusive and a perpetual bar to any action unless an appeal is taken from the decision, or unless the common council consents and agrees to the institution of an action by the claimant, or refuses or neglects to act upon the claim,-is not a statute of limitations, and that a complaint which fails to allege the presentation of the claim to the common council is subject to general demurrer. Council for plaintiff in this case contended that, as the right of action alleged was not created by statute, but existed at common law, the charter must not be regarded as prescribing a condition precedent, but merely as in the nature of a statute of limitations, and hence could only be reached by special demurrer. The court in reply to this contention said: "The distinction between such mere statutes of limitation upon an existing right of action, and a condition precedent to a right of action created by statute, is manifest. So there is a broad distinction between such statutes of limitation upon an existing right of action given by the common law, and a statute prescribing a mode of procedure as a condition precedent to maintaining such right of action in a court of justice, as in the charter provisions in the case at bar.. Such presentation being a condition precedent to the jurisdiction of the court, and as the record fails to show any such presentation, the demurrer was properly sus tained." The case of Davis v. Appleton, 109 Wis. 580, 85 N. W. 515, was expressly overruled so far as it conflicted with this deci sion. The charter provision involved in Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448, unlike that involved in the O'Donnell Case, did not preclude resort to the courts in any method other than appeal from an adverse decision of the common council, but merely provided that no action in tort should be maintained against the city unless a event. It was admitted on trial that no notice as required by said subdivision had been served, a verdict for the defendant was directed, and, from judgment thereon, the plaintiff appeals. The controlling question presented is whether that part of § 4222 above referred to applies to a cause of action arising in another state, when a resident of that state brings suit thereon against a resident of Wisconsin in a Wisconsin court. A few well-established principles seem to answer this question in the affirmative. The clause in question is a statute of limitations. Relyea v. Tomahawk Paper & Pulp Co. 102 Wis. 301, 72 Am. St. Rep. 878, 78 N. W. 412; O'Donnell v. New London, 113 Wis. 292, 89 N. W. 511; Meisenheimer v. Kellogg, 106 | of action itself the taking of the prescribed steps by way of presentation to the common council." Continuing, the court said: "If the city committed a trespass upon the lands of the plaintiffs, the common law gave them a right as against that city, to recover damages in the ordinary judicial tribunals. The legislature, by providing that before pursuing their remedy in those tribunals they shall give to the municipality an opportunity to settle or pay without litigation, cannot be presumed to have gone further than to merely postpone their right to commence that suit until the required act is done by them." It would seem from this that a general statutory or charter provision would be regarded as imposing a condition upon the existence of a right of action, or as a statute of limitations merely affecting the remedy, according to whether the cause of action was one of statutory defendant, as the result of an accident which happened at the defendant's shop in the city of Chicago, March 31, 1903. The defendant is a foreign corporation operating a manufacturing plant in Wisconsin, and on the 17th of September, 1901, had duly filed with the secretary of state an instrument appointing a resident attorney in this state, as required by § 4231, Rev. Stat. Wis. 1898. The defendant by answer pleaded as a defense that part of subdivision 5 of § 4222, Rev. Stat. Wis. 1898, which provides that no action to recover damages for personal injuries shall be maintained unless a written notice thereof containing certain prescribed statements shall be served on the person responsible for the injury within one year after the happening of the statement in writing with reference to the injury should be presented to the common council within a certain time. It was held that the action in question (trespass) being one which arose under the rules of the common law, the charter provision as applied to it was a statute of limitations merely, and did not impose a condition upon the existence of a right of action, and there fore the failure to allege compliance therewith was available only by answer or plea in abatement. The charter provision passed on in the case is quite similar to § 824, Rev. Stat. 1898, providing that no suit shall be brought against a town until the claim has been presented to the town board of audit, but containing no prohibition against suing the town in the ordinary form after such presentation. That statutory provision was held, in Benware v. Pine Valley, 53 Wis. 527, 10 N. W. 695 (an action under a statute for injuries from defective side-origin or one which existed at common law. walk), to impose a condition upon the exist ence of a cause of action, and not merely to create a regulation of the remedy, and the decision in that case was followed in a number of later cases which are cited in the opinion in the Bunker Case; but the latter opinion points out that nearly all of those cases presented claims of statutory liability and merely established the rule as original ly adopted in the Benware Case, that a statute like that involved in § 824, or a charter provision like that under consideration in the Bunker case, must be deemed a condition imposed by the legislature upon the creation of the right, and not a mere burden imposed upon the remedy. The opinion in the Bunker Case then points out that the cause of action there sued upon arose under the rules of the common law, and was therefore subject to the same distinction that had been established by the cases with reference to the statutory provisions as to notice, namely, "that with reference to the cause of action which the legislature does not confer by its own act, there is no necessary or reasonable inference that by such enactments as that now under consideration it was intended to import into the cause There are other Wisconsin cases passing upon the various statutory provisions in that state with reference to notice or claim, some of which are perhaps not to be harmonized with those above cited; but it is believed that the latter represent the position and distinctions with reference to this subject which are now established in that state. In Schmidt v. Fremont, 70 Neb. 577, 97 N. W. 830, the court said that the notice required by a statute declaring that no city shall be liable for damages arising from defective streets, alleys, or sidewalks unless notice of the accident or injury is given within a specified time is in the nature of a process by which the action to recover damages is begun, and the statute itself is in the nature of a special statute of limitations without exceptions. This appears to be opposed to the position taken by the Wisconsin cases above cited with reference to the notice required by § 1339 of the Wisconsin statutes. The decision in this case, however, which was merely to the effect that the failure to give such notice was not excused by the plaintiff's physical incapacity to give it, does not seem neces Wis. 30, 81 N. W. 1033; Lawton v. Waite | privileges, no more, no less. Eingartner v. (Lawton v. Chilton), 103 Wis. 244, 45 L.R.A. Illinois Steel Co. 94 Wis. 70, 34 L.R.A. 503, 616, 79 N. W. 321; Gatzow v. Buening, 106 59 Am. St. Rep. 859, 68 N. W. 664. This Wis. 1, 49 L.R.A. 475, 80 Am. St. Rep. 1, 81 does not mean that our statutes of limitaN. W. 1003. True, its operation is some- tions have any extraterritorial effect so far what different from the operation of other as foreign causes of action are concerned. statutes of limitations, in that it acts upon They do not reach over into Illinois and exthe time within which a preliminary notice tinguish a right of action arising there. It shall be served, instead of the time within only means that the foreign right sought to which the summons shall be served, but it be enforced in this state after our statute is none the less a limitation upon the right has run has ceased to exist so far as reto maintain the action. Troschansky v. Milwaukee Electric R. & Light Co., 110 Wis. gards its enforcement in this state, although the right and all remedies to enforce it in 570, 86 N. W. 156. It is the long-settled the state of Illinois remain entirely unaf doctrine of this court that, when a statute fected. Of course, when a cause of action of limitations has completely operated, it arising here between residents of Wisconsin extinguishes the right of action by taking is barred here, the right is extinguished in away the remedy. Eingartner v. Illinois Steel Co. 103 Wis. 373, 74 Am. St. Rep. 871, ably claim that because it could not be enall jurisdictions; but no one could reason 79 N. W. 433. In the absence of any saving clause our statutes of limitation operate against nonresident plaintiffs who bring actions in the courts of this state, as well as against residents. Winter v. Winter, 101 Wis. 494, 77 N. W. 883; Fields v. Mundy, 106 Wis. 383, 80 Am. St. Rep. 39, 82 N. W. 343. Were the rule otherwise the result would be that nonresident litigants coming into our courts to enforce a foreign cause of action would possess greater rights and privileges than citizens of our own state. They are entitled to the same rights and sarily to depend upon a characterization of the statute as a statute of limitations. Apparently the decision on the point must have been the same, even if the statute had been regarded as imposing a condition upon the right of action itself. In Belken v. Iowa Falls, 122 Iowa, 430, 98 Pac. 296, the provision of Iowa Code, § 3447, that actions founded on injury to a person on account of defective sidewalks must be brought within three months unless written notice as therein provided for shall be served on the municipality within sixty days from the happening of the injury, was treated as a statute of limitations, the benefit of which was waived by defendant's failure to plead it. It will be observed, however, that, while the liability to which the statute relates is a creature of statute, the provision itself is a part of the general statute of limitations, and is by its terms merely a condition upon which the right to the longer limitation period depends. The case is therefore clearly distinguishable from the Wisconsin cases already referred to. A provision of a city charter that all claims for damages against the city grow ing out of the negligence or default of the city or any officer or employee thereof shall be presented to the common council within a certain time, and in case of default thereof shall be forever barred, was declared, in Van Auken v. Adrian, 135 Mich. 534, 98 N. W. 15, to be a statute of limitations. The forced under the limitation laws of a sis ter state it is barred here. So we hold that the provision in question is a limitation statute admitting of no exception; that it applies to both foreign and domestic causes of action; that it acts like any other statute of limitations, extinguishing the right in a domestic cause of action as to all jurisdictions, and extinguishing the right in a foreign cause of action sought to be enforced in this state by a nonresident, as far as its enforcement in our courts is phraseology employed in this statute seems appropriate to a statute of limitations, and, besides, the decision in this case, which was to the effect that the city officers, in the absence of express statutory authority, could not revive a claim where it became barred by failure to present it, does not seem to depend necessarily upon a characterization of the provision as a statute of limitations. From the foregoing review of the authori ties it would seem that there are three distinct aspects in which a statute providing for notice of or presentation of a claim may be assumed: (1) As a statute imposing a condition upon the existence of a right of action; (2) as a statute of limitations merely affecting the remedy, and not the existence of the cause of action itself; (3) as a statute imposing a condition upon the jurisdiction of the court. Doubtless, as between the first two alternatives, the character of a statute may be affected by its particular phraseology or its statutory setting, e. g., its inclusion among other provisions which are concededly statutes of limitations; but in the absence of such indications its charac ter seems to depend upon the question whether the cause of action to which it is to be applied is one of statutory origin, or one which existed at common law. The third alternative seems to be dependent upon the employment of phraseology, the effect of which is to restrict the method of gaining access to the courts. concerned. This accords with the decision | 764, 28 Pac. 977; Eaton v. Fitchburg R. Co. 129 Mass. 364. of the trial court. 1. The question of negligence in leaving in a street a team unattended, but hitched to a ground weight, the brakes on the wagon being set, so as to render the owner liable for injury to a bicycle, caused by their running away, is for the jury. Evidence-negligence-ordinance. 2. Upon the question of negligence in leaving in a street a team unattended, but hitched to a ground weight, a municipal ordinance prescribing the care to be used in such cases, and the weight of the blocks to which they must be fastened, is admissible in evidence. Each person on the street must use the street and his property thereon with due care, so as not to injure any other person. Georgetown, B. & L. R. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696; Rylands v. Fletcher, L. R. 3 H. L. 330; Fletcher v. Smith, L. R. 2 App. Cas. 781, 5 Morrison Min. Rep. 78; Cork v. Blossom, 162 Mass. 330, 26 L.R.A. 256, 44 Am. St. Rep. 362, 38 N. E. 495; Mastin v. Levagood, 47 Kan. 36, 27 Am. St. Rep. 277, 27 Pac. 122, Affirmed in 47 Kan. Note.-Upon the question of the effect of municipal ordinances upon the question of negligence, see note to Shellaberger v. Fisher, 5 L.R.A. (N.S.) 253. If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done. Illidge v. Goodwin, 5 Car. & P. 190; Colorado Mortg. & Invest. Co. v. Rees, 21 Colo. 446, 42 Pac. 42; Pierce v. Conners, 20 Colo. 180, 46 Am. St. Rep. 279, 37 Pac. 721; White v. Trinidad, 10 Colo. App. 330, 52 Pac. 214; Lacey v. Winn, 3 Pa. Dist. R. 811, 4 Pa. Dist. R. 409. Mr. Joshua Grozier, for appellee: When one is pursuing a lawful avocation in a lawful manner, and something occurs which no human skill or precaution can foresee or prevent, and as a consequence the accident takes place, he is not liable. Blythe v. Denver & R. G. R. Co. 15 Colo. 333, 11 L.R.A. 615, 22 Am. St. Rep. 403, 25 Pac. 702; Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518; Grand Valley Irrig. Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420; Denver & R. G. R. Co. v. Robinson, 6 Colo. App. 432, 40 Pac. 840; Denver & R. G. R. Co. v. Wheatley, 7 Colo. App. 284, 43 Pac. 450; Burlington & M. River R. Co. v. Campbell, 14 Colo. App. 143, 59 Pac. 424; Robinson v. Denver & R. G. R. Co. 24 Colo. 98, 49 Pac. 37; Denver Consol. Electric Co. v. Simpson, 21 Colo. 371, 31 L.R.A. 566, 41 Pac. 499. the court: Campbell, J., delivered the opinion of The plaintiff Caughlin says he left his bicycle on Fifteenth street, in the city of Denver, leaning against the adjacent curbstone. While the driver of defendant's wagon, to which two horses were attached, was engaged in making delivery of the products of its bakery, which business the defendant was conducting in the city of Denver, the driver, negligently, as the complaint avers, left the wagon and team standing near plaintiff's vehicle, without any person in charge or control thereof, by reason of which negligence the horses ran away, and with the wagon ran over plaintiff's bicycle and injured it, for which damages are sought by this action. The negligence of the defendant is denied in the answer. Upon these controverted issues the case was tried by the court without a jury. The findings were against the plaintiff, and judgment thereon was rendered dismissing the action. From this judgment the plaintiff took the case to the court of appeals. cause For injuries of this character the of action is negligence. Plaintiff in his complaint expressly grounded his action upon defendant's negligence in leaving the team and wagon in the street, without any person in charge. From the admissions of the parties and specific findings of the court, do while they are being driven along, or upon evidence which, though not altogether left standing in, a public highway. The harmonious as to some minor particulars, as plaintiff unquestionably was lawfully on the to important matters is not conflicting, it street with his bicycle, and the evidence appears that defendant's driver has been does not show that he was guilty of negli employed for more than a year, and the gence that contributed to the injury. The team, though one of the horses was used defendant likewise was lawfully on the only a short time, were very gentle and street with its horses and wagon. It is not quiet, had traveled this same route every true, however, as the plaintiff contends, day, and had never been known to be that the mere act of leaving the horses and frightened, or shown evidence of viciousness. wagon on the street unattended is negliOn the morning of the accident, after plain-gence per se, even if the fact that the horses tiff left his bicycle on Fifteenth street, got loose be some evidence of negligence. placing it in the ordinary way in which The latter point was so ruled in Strup v. riders do, he went into Thompson's grocery Edens, 22 Wis. 432, though it was said that store, and the defendant's driver with a such a thing might occur notwithstanding team of horses drove up in front of the due care in hitching. The very cases cited store, whether before or after plaintiff by plaintiff show that where some restraint alighted from his bicycle, the witnesses do has been placed upon horses left standing not agree, and stopped within 2 or 3 feet in a street, the question whether such act of the sidewalk, got off the wagon, put on is due care or negligence is for the jury to the brakes, and let drop to the ground a determine from all the facts and circumweight which was supposed to hold the stances surrounding the transaction. Such horses, and then entered the store. While was the case of Rumsey v. Nelson, 58 Vt. the driver was there, the team started up 590, 3 Atl. 484. There it was said that it for some reason which is not disclosed by might be considered as negligence in the the evidence, notwithstanding the precau- fastening or leaving unattended of one tions taken by the driver, and ran over and horse that would not be so considered in aninjured plaintiff's bicycle. The court found other, and for that reason the character of that the driver exercised reasonable care in the horse as being gentle or vicious is relewhat he did; that there was nothing un- vant. usual about the team; that he had a right to drive them where he did and leave them in the manner in which he did, and from all the facts the finding was that defendant was not guilty of the negligence charged. The horses were not hitched to any permanent object, but were restrained or held in check by means of an iron weight. To this piece of iron weighing 56 pounds, which is carried in the wagon, or hangs suspended therefrom, when the horses are traveling, are attached two broad straps,-one by which the weight is lifted from and dropped to the ground; and the other passes along under the tongue of the wagon to within about 4 feet of the heads of the horses. Fastened to this broad strap at this point is a ring, and connected with this ring are two other straps,-one running to the mouth of each horse, and attached to the rings of the bridle bits on both sides of his mouth, so that, when the weight is dropped from the wagon and the horses attempt to move, the strap pulls upon the bits of the horses on both sides at the same time. The appellant's position is that the act of defendant's driver in leaving the team and wagon standing in the street as he did was negligence per se, for which the defendant is liable in damages for any mischief that the horses may do. It is not the law that the owner of a vehicle drawn by horses is absolutely liable for damages that they may In Pearl v. Macaulay, 6 App. Div. 70, 39 N. Y. Supp. 472, which was an action for personal injuries which resulted from plaintiff's being knocked down and run over by defendant's horse and wagon, which had been left unattended in the street, the court instructed the jury that whether the act of the defendant was negligence for which he was responsible was for them to determine: and if the horse was not properly secured, defendant may be liable, otherwise not. The plaintiff seems to rely upon the doctrine announced in the leading case of Fletcher v. Rylands L. R. 1 Exch. 265, Affirmed by the House of Lords in Rylands v. Fletcher, L. R. 3 H. L. 330. That was a case where the plaintiff was damaged by his property being flooded by water which, without any fault on his part, broke out of a reservoir constructed on defendants' lands by defendants' orders, and maintained by them. The ruling was that where a person lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escape out of his land, it is his absolute duty to keep it in at his peril. This case has been followed by some of the courts of this country, and rejected by others. In his valuable work on the Law of Torts, 4th ed. at page 442, Mr. Pollock says that the judgment of that case itself suggests the possibility of exceptions, and that the tend |