104 Wis. 367 | Wis. | 1899
This action was commenced August 26, 1891, to recover damages for personal injuries sustained by the plaintiff June 21, 1896, about noon, by reason of an alleged defective highway, consisting of a hole or depression in the traveled portion thereof at the place described. Issue ibeing joined and trial had, at the close thereof the jury returned a special verdict to the effect: (1) that the plaintiff was injured by being thrown from a wagon at the time and place described; (2) that the highway at that place was in a defective condition for travel upon and over the same; (3) that said highway, on the evening before, was not in a reasonably safe condition for the travel passing over it; (4) that such defective condition of said highway at the time and place named was not caused by an unusual or extraordinary rainfall occurring during the night before the accident; (5) that the defendant did not have actual notice of such defect in time to have the same repaired before the accident; (6) but that such defect had existed for such a length of time before the accident that the defendant, in the exercise of ordinary care and diligence, would have known of such de-
. ' 1. The plaintiff was injured June 21, 1896. On July 25, 1896, the plaintiff presented his claim against the town, and filed the same with the. clerk, wherein he claimed that the defendant was liable in damages to him in the sum of $1,000, and the original complaint only demanded judgment for that amount. Afterwards, and on November 28, 1898, at the beginning of the second trial, the plaintiff was allowed, against objection, to amend his complaint, and increase his prayer for judgment to $5,000; and, as indicated, the jury assessed his damages at $2,600, and judgment was entered 'for that amount. With certain exceptions, the statute de-olares that “No action upon any claim or cause of action for which a money judgment only is demandable . . . shall be maintained against any town unless a statement or bill of such claim shall have been filed with the town clerk to be laid before the town board of audit.” Sec. 824, Stats. 1898. The filing of such statement or bill of such claim was essential to the maintenance of the action, and a failure to allege the same in the complaint would have been fatal on demurrer. Benware v. Pine Valley, 53 Wis. 527; Eron v. Stevens Point, 85 Wis. 379; McKibben v. Amory, 89 Wis. 607; Flieth v. Wausau, 93 Wis. 446. The “statement or bill ” so required to be filed to be laid before the town board of audit necessarily included the amount of such claim. No such statement or bill was ever filed as to any claim in excess of $1,000. To allow the original complaint, fifteen months after its service, to be thus amended by increasing
2. Error is assigned because one of the plaintiff’s medical experts was allowed to testify to the effect that a man riding along over a corduroy road on a wagon with four wheels, and pitched out over the wheel into a hole, striking his shoulder onto the logs, might produce such an injury as that received by the plaintiff; that the injuries received by the plaintiff incapacitated him to the extent of about two thirds,— that is to say, he was only capable of performing one third as much manual labor as before the accident. True, such evidence was somewhat conjectural, but its only bearing was upon the question of damages, and, in view of what has already been said, we must hold that it is an error which does not affect any substantial right of the defendant, and therefore is not reversible error. Sec. 2829, Stats. 1898.
3. Error is assigned because one of the witnesses for the plaintiff, after having testified without objection that th© plaintiff had, two weeks before the trial, pointed out to him the place where he claimed he got hurt, and that he passed over the road two days prior to the accident in question, and that he then noticed something unusual in that road
4. Error is assigned because, after one of the defendant’s experts had been asked as to whether, in case of fractures of the bones of the shoulders and legs, people were not more or less crippled, the judge of the court remarked that he did not think there was any negligence in the conduct of the plaintiff up to the time the doctor was called in, that the doctor got to his home at about the sanie time that he did, and that he did not think any negligence could be predicated on that as a matter of law. We perceive no error in such remark in respect to a question of fact about which there was no dispute.-
5. Error is assigned because the court, among other things, instructed the jury upon the seventh question submitted to the effect that most men would say that the word proximate meant whether it was the direct and immediate cause
8. Error is assigned because the court refused to give an instruction requested upon the subject of contributory negligence in connection with the eighth question submitted. What was contained in the instruction,was fully covered by ■the general charge, unless it was the portion which states that the plaintiff must show himself without negligence. That would have been equivalent to saying that the plaintiff liad the burden of proving that he was free from contributory negligence. This court has frequently held that the harden of proving contributory negligence is ordinarily upon f-ke defendant. An exception to such rule is when such contributory negligence is disclosed by the testimony on the part of the plaintiff. Hoye v. C. & N. W. R. Co. 67 Wis. 15,
We find no error in the record, except as to the amount of damages allowed in excess of the amount named in the claim filed.
By the Court.— So much of the judgment as is based upon a verdict in excess of $1,000 is reversed, with costs and.disbursements, except that the defendant is not to be allowed for printing more than twenty-five pages.;, and the judgment in all other respects is affirmed.