58 Wis. 370 | Wis. | 1883
The jury found specially that the side track upon which the plaintiff was traveling when' she was injured had been generally used by the public for travel since 1877, and the same was, at the time of the accident, usually go used. These findings were directed by the court on the ground that there was no conflict in the testimony on those points. The question was submitted to the jury whether the stump, which was the cause of the accident, was so near the side track as to form an obstruction to travel thereon, and the jury answered it in the affirmative. These .are the only findings from which any presumption can be drawn that the highway was insufficient or out of repair, or that the defendant town had been guilty of negligence in that
The evidence is undisputed that the graded track was in every respect sufficient and safe for public travel; that it was much traveled; and that it was the only track which had ever been opened for travel by the town. In such a case the general duty of the town and the traveler upon the highway is thus stated by DixoN, C. J., in Kelley v. Town of Fond du Lac, 31 Wis., 179: “ The responsibility of towns, without doubt, primarily extends only to losses or damage sustained by reason of defects in the traveled portion of the highway, for they are not bound to keep the highway in its whole width in a suitable or safe condition for travel. It is, in general, the duty of the traveler, therefore, to remain in the traveled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence if, without necessity, or for his own pleasure or convenience, he voluntarily deviates from the traveled track, which is in good condition, and in so doing meets with, an accident from some cause outside of the traveled track, the town will not be responsible for any damage or injury which he may thus sustain. This was so held in Sykes v. Pawlet, 43 Vt., 446.” The same rules were asserted in Matthews v. Town of Paraboo, 39 Wis., 674. See, also, Cremer v. Town of Portland, 36 Wis., 92.
Yet it must be conceded, we think, that the town may, by long acquiescence in the use of a side track by the public as a part of the traveled highway, become bound to keep the same in repair as a part thereof, although it has, as in this case, provided another sufficient track for such travel. There may be two or more authorized traveled tracks along the same highway, and where there are more than a single track, and nothing has been done by the authorities to indicate to travelers that any of the tracks are unauthorized, the traveler may well assume that travel is authorized upon any of them. To relieve itself from liability when 'the public travel, or
The court is of the opinion that there was sufficient testimony to be submitted to the jury on the question whether the town employed reasonable and proper means to warn travelers that the side track was unauthorized, and that they were required to take the graded track. The mere fact that no signal or warning was there when the accident occurred, does not necessarily put the town in default. Klatt v. Milwaukee, supra.
The above question was not submitted to the jury, and is
. Certain questions of practice remain to be considered. The action was brought in the circuit court of Portage county, and afterwards, on motion of plaintiff, the place of trial was changed to the circuit court of Waupaca county. The petition for such change is in the form of an affidavit .signed by Judge Cate, but the jurat thereto is not signed. The change was prayed for on the grounds (1) that an impartial trial could not be had in Portage county, where the ■cause had once been tried; and (2) that the convenience of witnesses and the ends of justice would be promoted by the ■change. E. S., 718, sec. 2622, subds. 2, 3. The change was granted on the latter ground alone.
The order granting the change bears date November 28, 1882, and it does not appear that any notice of the application therefor was served upon the adverse party. The record «hows, however, that counsel for the defendant appeared at ■the hearing of the motion in opposition thereto. On December 27, 1882, (which was more than twenty days after the order was made), the circuit judge granted an order ex jparte extending the time for the transmission of the record to the circuit court for Waupaca county to January 1,1883. 'This order is based upon an affidavit of the clerk of the cir
1. Under sec. 2628, R. S., the objection that no notice was given. of the motion to change the place of trial is not now available to the defendant, because that objection was not taken in writing before the trial, as required by that section. Regularly, due. notice of such a motion should be served on the adverse party, who is entitled to be heard before the action is sent to another county. In this case, however, the defendant appeared by counsel, and without objection (so far as appears) resisted the motion on the merits. This of itself is an effectual waiver of the irregularity, and is equivalent to due notice of the motion. .
2. The statute under which the place of trial was changed (R. S., ch. 119) prescribes no procedure where the application for the change is made for “ the convenience of witnesses and the ends of justice.” No affidavit ■ or sworn petition is required by the statute or rules of court. It is sufficient if the judge is satisfied by proof that a cause for the change exists. We know from the record that he had before him the petition of Judge Cate in the form of an affidavit, but.
Undoubtedly it was competent for the court to take the oral testimony of witnesses in open court in support of or opposition to the motion. We are not informed by this, record whether such proof was or was , not made. We only know that the court, being sufficiently advised, determined that a case for the proposed change had been made. The record being silent, we must assume that the adjudication was made upon legal and sufficient proofs. Moreover, did it appear affirmatively that the court had nothing before it but the petition signed by Judge 'Cate, and were it true that a sworn petition is required, we' should be strongly inclined to hold that the objection thereto should have been taken on the hearing of the motion for the change, when the omission of the officer’s signature to the jurat might have been supplied; and that it was too late to make it for the first time after the order was made, and the record had been transmitted pursuant thereto. But it is not necessary .to decide this point; the objection to the application is overruled on the grounds first above stated. ' This is but an application of the rule that if the record is silent, regularity, not error, will be presumed.
3. It only remains to consider the objections to the order extending the time for transmitting the record to W aupaca
The authority for granting the extension is found in sec. 2831, and the procedure in that behalf is therein prescribed. It is there expressly provided that the order may be made by a judge; and the same may be made as well after as before the time limited for doing the act has expired. This court has uniformly given this construction to the section. It is also apparent that the section authorizes the court or judge to act on an ex parte application. It requires the party obtaining, the extension to serve on the adverse party a copy of the order, and of the affidavit upon which it was procured. Were notice of motion required, a copy of the affidavit would necessarily accompany the notice (Circuit Court Rule XI, sec. 2); and service thereof, after the order is made, would be superfluous. We do not think the legislature intended to require a double service of the affidavit, and are therefore of the opinion that the statute authorizes the order to be made on an ex parte motion, leaving the opposite party to his motion to vacate it, if so advised.
By the Court.— Judgment reversed, and cause remanded for a new trial.