Wis JI-Civil 1395

Public highways are constructed primarily for the use of the public in traveling upon

them. In addition to this use, public utilities are permitted to construct within the highway

right-of-way facilities, such as poles, wires, and necessary supporting devices and guy wires.

A safety statute provides that the original construction of such facilities must be done

in such a manner that the public use of any highway, bridge, stream, or body of water will not

thereby be obstructed or incommoded. The original construction must be of such design and

the materials used must be of such quality as to withstand the outside forces or deterioration,

which would be reasonably anticipated by a person exercising ordinary care.

After the facilities have been constructed, it is the duty of the public utility to exercise

ordinary care to maintain the facilities in a reasonably safe state of repair in order to avoid

obstructing or incommoding the public use of the highway. The utility has a further duty to

exercise ordinary care to make inspections from time to time to learn of any defects that may

cause an obstruction or incommode the public use of the highway. The frequency of such

inspections is determined by what a person of ordinary intelligence and prudence would do in

view of the type and usual life span of the materials used in the constructions and the

likelihood or unlikelihood of damage by outside persons or forces.

If a highway obstruction by a utility facility is caused by a force occurrence, such as

fire, storm, or vandalism, for which the company was not responsible, then you cannot find

the utility negligent unless the utility had notice of the obstruction, or, unless this condition

occurred such a length of time prior to the accident that the utility, in the exercise of ordinary

care, ought to have discovered the obstruction and repaired it. It is the duty of a utility upon

receiving notice of damage to its facilities which causes, or is likely to cause, a highway

obstruction to repair the facility as soon as is reasonable.