Cairncross v. Village of Pewaukee

86 Wis. 181 | Wis. | 1893

Cassoday, J.

The defendants Flamnigan and Hengel owned the boat, and were the active agencies in placing it with one end in or near the water of the lake, and the other about the middle of Main street, about 5 o’clock in the afternoon of April 25, 1889. There appears to have been sufficient space between the end of the boat and the other side of the street for teams to pass and repass. The boat remained in that position all night and a good share of the next day. About 10 o’clock in the forenoon of April 26, 1889, the plaintiff led the horse? in question along that street.' past the'boat, without injury, and then drove for a distance of about two and a half miles toward the north, where he had some business to do. At the time he so passed the boat, going north, the men named were engaged in launching it. He returned about half past 11 o’clock that saíne forenoon, and his wife with him. The boat appears to have remained in substantially the same place as when he went-north. As he approached the boat from the north, he and his wife got out, and he then took the horse by the bit, and again started to- lead him by the boat, as he had going-north. As he got opposite the boat with the horse, the latter plunged awhile, and finally the bit parted, and the horse got away from him and ran and was injured. Thus, it appears that tbe boat remained substantially as described for eighteen hours and a half before the injury, and that during that time it was in the charge of the owners and their men.

The findings of the jury to the effect that the boat was not launched with reasonable care, promptness, and expedition, and that, as left in the street, it was an1 object naturally calculated to frighten horses of ordinary gentleness, seem to be sustained by the evidence, so far as they apply to Flannigcm and Hengel, and the charge of the court submitting such questions to the jury seems to be full and fair, and in no way prejudicial to the defendants Flannigan and Hengel. So, within the repeated adjudications of this court, the trial judge was justified in refusing to grant the non-suit as to those two defendants, or to direct a verdict in their favor, and in submitting the question of the plaintiff’s contributory negligence to the jury. Richards v. Oshkosh, 81 Wis. 228, and cases there cited.

Exception is taken because the court, in charging the jury upon the subject of the plaintiff’s contributory negligence, said “ that in considering that question you are not to take into consideration the fact, if it is a fact, that there was another road by which he might have passed round this obstacle or obstruction.” This was said in view of the fact brought out on the cross-examination of the plaintiff by the counsel for the defendants, to the effect that the distance around by such other road was about a mile and a half. Under the authorities cited, the court was justified in charging the jury as he did. Exception is taken because the court charged the jury that “ you are not to take into consideration the fact that the bit broke.” This portion of the charge is fairly justifiable upon the rules stated by Dixon, C. J., in Houfe v. Fulton, 29 Wis. 304-306, and expressly sanctioned by Mr. Justice Orton in Olson v. Chippewa Falls, 71 Wis. 562, 563. Exception is also taken because the court charged the jury to the effect that they were not to take into consideration the fact that the plaintiff knew of this obstruction when he passed it going north, a couple of hours before, except that the fact that he so knew held him to a greater degree of care and caution in passing it than if he had not known it. We find no error in such charge.

Error is assigned because the plaintiff was allowed to prove by the witness Eloar, in effect, that in passing the boat on the evening of April 25, 1889, with a double team, no one there offered to assist him in getting his team by the boat. This testimony only bore upon the fifth question submitted to the jury, and they found that no assistance was offered to the plaintiff when he passed the boat at the time of the accident; and the evidence appears to be undisputed that such was the fact.

The want of notice of the defect, required by sec. 1339, E. S., is not available.as a defense for Flannigan and Ilengel, who were the active agencies in placing the obstruction in the street. , Hughes v. Fond du Lac, 73 Wis. 382.

We conclude that that ¡portion of the judgment against Flannigan and Ilengel must be affirmed.

But we are constrained to hold that the appeal of the village stands upon an entirely different footing. True, the jury find that the officers of the village had notice or knowledge of the presence of the boat at 5 o’clock^ on the evening prior to the accident; but the boat was then in charge of its owners, who were manifestly engaged, at least apparently, in launching the same. The law did not require such officers to assume, in advance, that such owners would not do their duty with respect to launching the boat. The same was true the next morning, when such owners were still apparently engaged in launching the boat. None of the village officers had been an active agent in placing the boat where it was at the time of the accident. They were, at most, passive observers as to what had transpired respecting the boat. There is no claim that the street itself was defective, otherwise than by the presence of the boat. The boat does not appear to have been left unattended, to the knowledge of any of the village officers. It is unlike the case of the street itself becoming defective, to the knowledge of the road authorities, by reason of' a sudden hole in the street or a broken plank in a bridge. The defect here consisted in bringing from a distance an unusual object, and placing the same on the street in a manner naturally calculated to impede travel and frighten horses of ordinary gentleness. In the language of Mr. Elliott : “ Any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance at common law.” Elliott, Roads & S. 477, and numerous cases there cited. The court charged the jury to the effect that the owners had the right to draw the boat over the highway as they did, and to place it where they did, for the purpose of launching the same. The presence of the boat, therefore, did not become a public nuisance until it unnecessa/ril/y impeded or incommoded travel upon the street. The boat became süeh public nuisance only after the owners had failed to launch the same “ with reasonable care, promptness, and expedition.” True, the question of such reasonable necessity is ordinarily for the jury. The right to so hinder or obstruct travel is by no means absolute or continuous. It is, at most, temporary. It depends upon the necessity, and the necessity may depend upon the size and weight of the object handled, the duration of the obstruction, and- perhaps other circumstances. Jochem v. Robinson, 66 Wis. 642, and cases there cited.. Such being the law applicable, it is obvious that the village officers were not required to interfere until, to their knowledge, the delay of the owners to launch the same had become unreasonable; and then, after that, such officers would only be required to launch the boat with reasonable care, promptness, and expedition. There is an absence of any evidence in the record to hold the village liable on the theory mentioned.

By the Court.— That portion of the judgment which is against Flanmgan-&ud Hengel is affirmed; that portion of the judgment which is against the village is reversed; and the cause is remanded for a new trial upon the issues between the village and the plaintiff.