107 Wis. 559 | Wis. | 1900
A number of assignments of error were made by appellant which are not considered well taken, and these will be first considered.
1. It is said that the loous in quo was not shown to be a highway. ' The road in question wás shown to have been first opened by private parties, but it was also shown that it had been in existence and generally used by the public for twelve or thirteen years, and, further, that several taxpayers had been permitted by the overseer of highways to work out their road taxes at various times upon it. We do not think, however, that the question was an open one, under the pleadings. The complaint alleges that the road where the accident occurred was a public highway in the defendant town. The answer admits that there is and was a wagon road in said town at the place claimed, which is used by the public for travel by teams and by travelers on
2. It is argued that no defect in the highway was shown, because there was shown to be a smooth road a little over ten feet in width at the point of the accident. This position is untenable, because it is well settled that, notwithstanding a road may contain a smooth traveled track of sufficient width, still, if there is an obstruction or declivity so close to the traveled track as to render the road unsafe for those traveling thereon in the exercise of ordinary care, the highway may be insufficient. Slivitski v. Wien, 93 Wis. 462, and cases cited. The question whether the log in this case was .such an obstruction was properly for the jury.
3. It is claimed that there was no sufficient evidence to
4. It is claimed that no proper notice was given to the town, under the provisions of sec. 1339, Stats. 1898, because a copy only was given to one of the supervisors, whereas the statute requires the original notice to be served, and because the notice was signed, “Matilda Hetzel, by B. A. Cady, Her Attorney,” and was not signed by the administrator who brings the action. Conceding that such a notice is necessary
5. It is objected that the evidence was not sufficient to show any pecuniary loss to the widow. We think this objection not well taken. The evidence of the widow showed, in substance, that the deceased was a strong, healthy man, thirty-eight years of age; that he owned and lived upon 160 acres of land, fifteen acres of which were cleared and cultivated; that he supported his wife and three children by his labor on the farm; that he left a team of horses, two cows, and two heifers; that he raised during the year before his death about 300 bushels of grain, 100 bushels of potatoes, half an acre of corn, and some hay; that she helped her husband some in making hay and during harvest time; that she had done all the work herself since her husband’s death, and during the last year raised forty-five bushels of grain, some hay, potatoes and corn, but not quite as much as when her husband was alive. While it would have been more satisfactory if the money value of the earnings of the deceased which he contributed to the support of his wife had been
6. It is insisted that the verdict is improper in form, "and does not cover all the issues in the case, and that the following questions submitted by the defendant should have been incorporated in the verdict: “(1) Was Jacob Iletzel, at the time he was killed, intoxicated from drinking spirituous, malt, or intoxicating liquors? (2) Was the road a public highway, which the defendant was bound to keep in repair? (3) Was the road in such»a condition that a person using ordinary care and prudence could safely drive over the same without striking log described in complaint? ”■ As to the second of these questions, it has already been held in this opinion that the answer must be construed as admitting the existence of the highway, and as to the other questions we think they were, in effect, covered by the questions actually submitted. A criticism is made of the form of the questions with regard to the condition of the highway which has a certain degree of force. The statute creating liability for accidents upon highways (sec. 1339, Stats. 1898) provides for a recovery in case of damage caused by “ the insufficiency or want of repairs ” of any bridge or road. Both in the special verdict and the charge of the court in this case the question submitted to the jury is whether the highway was “ defective and unsafe.” While we are not prepared to say that this expression is not substantially equivalent to the expression “ insufficient ” or “ out of repair,” we should think it better if the statutory terms were used, especially in view of the fact that the liability is purely statutory.
Passing, without specific mention, a number of minor as
By the Cov,rt.— Judgment reversed, and action remanded for a new trial.