CONNOR T. HANSEN, J.
We consider the dispositive issues on this appeal to be:
1. Whether the highway defect notice of claim statute, sec. 81.15, Stats., is applicable?
2. Whether the record supports the verdict that the city was negligent with respect to the location of a stop sign?
The accident occurred in the intersection of West Mill Road and North 84th Street. These two streets form a 90 degree intersection. North 84th Street runs north and south, and West Mill Road runs east and west. The surrounding area is residential.
The plaintiff was injured when the vehicle in which he was a passenger was struck by a vehicle driven by the defendant, James Holman. Holman was traveling north on North 84th Street; the host of the plaintiff was traveling west on West Mill Road. The accident occurred on a dark rainy evening.
West Mill Road has an official highway width of approximately 170 feet, with a 25 foot wide paved center roadway utilized for through traffic. To the south of the paved roadway, across a ditch and extending to the east and west of North 84th Street is a 25 foot wide gravel service or frontage road. The service road runs parallel to West Mill Road for several blocks and is used primarily for access to the various apartment buildings and private residences located to the south of West Mill Road. A similar gravel service road lies to the immediate north of West Mill Road, but extends only to the east of North 84th Street.
The 170 foot wide highway thus contains three separate and parallel roadways; the central paved portion, and the two gravel service roads. None of the roadways are curbed. Paved sidewalks run parallel to and north of the north service road and parallel to and south of the south service road.
North 84th Street has an official highway width of approximately 90 feet, with the paved roadway portion 48 feet wide. The street is curbed. The intersection is level, but lies approximately 600 feet to the west of a large hill. There are no marked crosswalks at the intersection, although unmarked crosswalks exist both to the north and south of West Mill Road on North 84th Street.
On September 19, 1961, the City of Milwaukee common council declared West Mill Road to be a through street and directed that stop signs be erected to control the north and southbound traffic on streets intersecting West Mill Road. It was intended that only the central paved portion and not the service roads be the through street.
In October, 1961, the City of Milwaukee installed a pair of back-to-back arterial stop signs at the southeast corner of North 84th Street and West Mill Road. The signs were installed approximately four feet to the south of the unmarked crosswalk which existed to the immediate south of the southern gravel service road. No stop signs were located immediately adjacent to the central paved portion of West Mill Road.
One sign faced south on North 84th Street and was designed to stop northbound vehicles on North 84th Street. The other faced north and served the purpose of cautioning southbound vehicles that West Mill Road was a through street. The stop signs were approximately 78 feet from the south edge of the paved central portion of West Mill Road.
A similar pair of stop signs were installed at the northwest corner of the intersection and were intended to stop southbound vehicles, and to warn northbound vehicles of the character and width of West Mill Road. In 1967, the signs were replaced with new and larger 30 inch signs. At all times pertinent to this action the stop signs remained in the same location. There is no dispute as to that location.
The evidence is in conflict as to whether Holman stopped at the stop sign as he was proceeding north on North 84th Street.
The allegations of negligence on the part of the city are summarized in the pleadings, as follows:
". . . That the injuries and damages sustained by the minor plaintiff, MICHAEL WEISS, was [sic] proximately caused by the negligence of the City of Milwaukee, in that it:
"(a) Failed to install, erect and place a stop sign at the Southeast corner of the intersection of North 84th Street and West Mill Road after having declared West Mill Road to be a through street;
"(b) Negligently installed, erected and placed a stop sign at said intersection at a point where it did not serve the purpose for which it was intended;
"(c) Violated Section 349.08(2) Wis. Stats. and Wisconsin Administrative Code, Hy 11.03, Installation of Stop Signs, in that the aforesaid stop sign was not erected at the point where a vehicle was to stop or as near thereto as practicable;
"(d) Violated Sec. 349.08(2) Wis. Stats. and the Wisconsin Administrative Code, Hy 11.03, Installation of Stop Signs, in that it did not erect the stop sign where it would best serve the purpose for which it was intended."
The answer of the city denied the essential allegations of negligence and, as affirmative defenses alleged compliance with the Wisconsin Administrative Code's provisions governing the placement of stop signs, and claimed that the plaintiff failed to comply with the notice-of-claim requirement of sec. 81.15, Stats.
Further facts will be set forth in our consideration of the issues.
SECTION 81.15, STATS.
The city contends that the trial court erred in denying its motion to dismiss which was based upon the plaintiff's noncompliance with the notice provisions of sec. 81.15, Stats., commonly referred to as the highway defect statute.
It is undisputed that the plaintiff failed to give written notice of the accident to the city within 120 days thereof as prescribed in sec. 81.15, Stats. It appears that the first actual notice given to the city was in the form of a claim for damages submitted on January 6, 1971, some two years after the accident. Thus, if sec. 81.15, did apply, the trial court would have erred in failing to dismiss the action unless the element of estoppel was involved. Harte v. Eagle River, 45 Wis.2d 513, 173 N.W.2d 683 (1970); Ocampo v. Racine, 28 Wis.2d 506, 137 N.W.2d 477 (1965); Lang v. Cumberland, 18 Wis.2d 157, 118 N.W.2d 114 (1962).
The advancement of this argument requires a consideration of both sections 81.15 and 895.43(1), Stats. Essentially, sec. 81.15 provides that no action for damages to a person or his property by reason ". . . of the insufficiency or want of repairs of any highway . . ." could be maintained against the city unless notice thereof was given to the city within 120 days after the happening the event.
Sec. 895.43(1), Stats., provides that no tort action could be maintained against the city unless notice was served upon the city within 120 days after the happening of the event causing the injury or damage. This section, however, specifically provides that failure to give the requisite notice ". . . shall not bar action . . ." if the municipality had actual notice of the damage or injury and the injured party shows to the satisfaction of the court, that failure to give notice was not prejudicial to the municipality.
The difference between sections 81.15 and 895.43(1), Stats, was expressed in Harte v. Eagle River, supra, pp. 517, 518:
"Prior to Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, and the abrogation of municipal immunity, sec. 81.15, Stats., was a major exception to the rule of municipal nonliability. Thus municipalities would often times try to establish that damages were not caused by highway defects and in this manner avoid liability. Since the abrogation of governmental immunity and the enactment of sec. 895.43, municipalities argue that damages are caused by highway defects and seek to escape liability under the notice provisions of sec. 81.15.
". . .
"The converse is also true, i.e., plaintiffs will now attempt to avoid sec. 81.15, Stats., and qualify under sec. 895.43. Both of these statutes require that notice be given within one hundred twenty days of an alleged accident and the limits of liability are $25,000. However, the more rigorous notice requirements of sec. 81.15 can be avoided if only sec. 895.43, which provides for actual notice if the delay or failure is not prejudicial, is applicable. . . ."
See also: Schwartz v. Milwaukee, 43 Wis.2d 119, 123, 168 N.W.2d 107 (1969); Dusek v. Pierce County, 42 Wis.2d 498, 504, 167 N.W.2d 246 (1969).
Whether or not sec. 81.15, Stats., applies to the facts of this case is dependent upon whether the plaintiff's action is based upon a highway defect as that term has been defined by this court's decisions. In Schwartz, supra, 122, 123, this court noted the narrowness of the area of negligence covered by sec. 81.15, Stats., stating:
". . . We point out, again, as we did in Dusek v. Pierce County (1969), 42 Wis.2d 498, 167 N.W.2d 246, and in Stippich v. Milwaukee (1967), 34 Wis.2d 260, 149 N.W.2d 618, that sec. 81.15, Stats., only applies to a small area of negligent conduct by a municipality and in this area does not necessarily cover all the negligence which might relate to highways. One may have negligence on the part of a city in respect to a public highway which does not amount to a defect or a want of repair as those terms have been heretofore construed by this court in considering sec. 81.15. Hence, sec. 81.15 does not pre-empt all causes of action relating to highways. . . .
Traditionally, the language of sec. 81.15, Stats., ". . . insufficiency or want of repairs of any highway . . ." has been interpreted to refer to physical defects existing on the traveled surface of the highway or to the absence or insufficiency of warnings of those physical defects.
The allegations of negligence in the complaint are based upon the alleged failure of the city to locate the stop sign in the position required by the applicable statutes and provisions of the Wisconsin Administrative Code. The question is whether the alleged negligent placement or location of a stop sign constitutes an insufficiency or want of repairs of a highway within the terms of the statute and as defined by this court.
The city relies upon language in Raisanen v. Milwaukee, 35 Wis.2d 504, 151 N.W.2d 129 (1967), for the proposition that highway defects also include defects in the maintenance or operation of traffic signs. In Raisanen, supra, the plaintiff alleged negligence in the installation, maintenance and programming of traffic lights. This court affirmed the trial court's order sustaining the defendant's demurrer to the complaint on the grounds that the defendant had programmed the traffic lights in accordance with the applicable statutes and highway commission rules. This court also found a second basis to affirm the order sustaining the demurrer in deciding the issue of whether sec. 81.15, Stats., or sec. 895.43(1), applied. This court held that under the allegations of the complaint, sec. 81.15 applied, stating at p. 515:
"Any defect in the maintenance or operation of t, 169 Wis. 43, 171 N.W. 653 (1919); State ex rel. Weingart v. Board, etc. G. U. G. Germania, 144 Wis. 516, 129 N.W. 630 (1911).