140 Wis. 319 | Wis. | 1909
In this action for damages resulting from, a defective highway the respondent pleaded that she “was thrown violently from the said wagon and struck on the rocks hereinbefore referred to, receiving therefrom severe and, as she is informed and verily believes, permanent injuries; . . . was rendered sick, sore, bruised,y maimed, and her life endangered, and she has suffered, and still does suffer, severe and excruciating pains.” Attached to the complaint and made part thereof is a copy of the notice served by respondent upon the town and required by sec. 1339, Stats. (1898), in which, after describing the place where the accident happened and the nature of the defect, she says:
“Thereby throwing me out of the wagon and causing me to fall with great force upon the ground, causing severe bruises to my legs and shoulders, and inflicting severe internal injuries.”
Also made part of the complaint is the claim for damages filed before the town board of audit as required by law, in which she states that she makes a claim for injuries result
“I claim damages against tbe town of Reedsburg for injuries, suffering, both mentally and physically, loss of earning capacity, both past and future, loss of time, etc., expense incurred and to be incurred for doctoring,” etc.
As a witness on tbe trial tbe plaintiff offered her testimony to tbe effect that by tbe fall in question sbe sustained injuries to her side, ribs, and back, to wbicb defendant objected in so far as it pertained to any injuries other than those expressly mentioned in tbe notice of injury and tbe claim filed with tbe town board, namely, an injury to tbe leg and shoulder and internal injuries. This objection was overruled. Sbe offered tbe testimony of her attending physician, who testified to an atrophy or wasting of tbe muscles of tbe back, causing curvature of tbe spine and having a tendency to increase. A similar objection to tbe admission of this testimony was made and overruled. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Schmidt v. Pfeil, 24 Wis. 452; Delie v. C. & N. W. R. Co. 51 Wis. 400, 8 N. W. 265; and a number of cases from other courts, are cited to show error in this ruling.' Sec. 1339, Stats. (1898), wbicb imposes this liability upon tbe town, requires as a condition precedent tbe service upon one of tbe town supervisors of a notice stating tbe place where such damage occurred and describing generally tbe insufficiency or want of repair wbicb occasioned it and that satisfaction therefor is claimed of such town. Tbe statute does not require that this notice specify tbe particulars in wbicb plaintiff was injured nor that any description of her injuries be. given therein.
From tbe excerpts quoted it will be seen that tbe aver-ments of tbe complaint in this respect were very broad and general, and, although the complaint incorporated therein this notice and further stated that tbe notice set forth tbe injuries of tbe respondent, tbe notice itself in this respect is very
One of the expert witnesses was asked how the injury affected respondent, and this question was allowed to be answered against objection by the appellant. Erom an examination of the testimony preceding the question we are inclined to agree with counsel for respondent that the word “injury” was then being used to designate the contusion, bruise, or trauma in question, and not the invasion of legal rights which might have occurred at the time of the accident. So construing this word there was no error in the ruling. The objection to a long hypothetical question on the ground that it did not include all the elements of facts testified to in the case and upon other grounds not necessary to mention was followed by a question from the court to counsel making the objection, asking counsel what facts he referred to which were not in the hypothetical question. Counsel referred to the fact of the existence of a scrofulous goiter for twelve years, but the question expressly assumed that respondent had been afflicted with goiter for a number of years and that it had increased
Evidence tbat there existed a space to the right of tbe traveled track in tbe highway in question twelve feet in width and a little higher than the traveled track was admitted, but the court excluded evidence of a witness who was asked to state whether this was such a piece of highway as would permit its use for the driving of a vehicle outside and to the right of the traveled track; also whether it was possible or practicable to drive over this strip of twelve feet at the place where plaintiff was injured.
We do not think that any prejudicial error can be predicated upon this ruling. If the jury had before it the condition and measurements of the traveled track and the opportunities to turn out and avoid the rock in question, they would not be aided much further by the opinion of the witness upon the question asked, even if we concede that such opinions were competent. The item of evidence is quite remote, and, unless coupled with proof that the plaintiff had opportunity to turn out of the traveled track and such knowledge of the defects in the traveled track as would require a person in the exercise of ordinary care to depart therefrom and travel on this strip, the opinions of a witness as to the practicability or feasibility of so doing would be quite immaterial.
A physician called by the respondent testified that he examined the respondent shortly after the injury and found no atrophy of the muscles of the back or curvature of the spine. The court limited the cross-examination of this witness rather
Error is assigned because the court refused the request of the defendant that the jury be instructed as follows:
“You are further instructed that, in determining whether or not the highway at the place in question was defective, you are to take into consideration the amount of labor and money which must necessarily be expended to obviate the condition wherein the alleged defect consists, and whether or not the same would be so excessive as to render impossible or .impracticable a change of such condition.”
Whether or not this was correct in law we need not determine, because there was no evidence in the case to which such instruction was applicable. And it is in itself inconsistent with the theory of the defense that there was a strip twelve feet in width to the right of the traveled track upon which the plaintiff might safely have driven. The road in question is over a hill called Buckley’s Hill, and is about nine feet wide between the raised sides. The wagon track is about six feet wide. On the right hand the bank ran up four, six, or eight feet high, and on the left hand there was a bank sixteen inches to two feet high extending up and then an abrupt drop. A rock extended across the wagon track diagonally. The right wheel of the wagon would strike the rock first, and from the bottom of the rut to the top of the rock was about eight to twelve inches. To the right of the traveled track the rock projected above the sand from four to six inches and about .as much on the left. This shows no situation calling for such an instruction.
The court also refused the request of the defendant that
The law as it now exists with reference to the liability of towns — that is, sec. 1339, Stats. (1898), as amended by ch. 305, Laws of 1899'— cuts off all right of action on the part, of the husband on account of injuries received by the wife, and renders the reason given for the exclusion of such damages in Bading v. Milwaukee E. R. & L. Co. 105 Wis. 480, 81 N. W. 861, no longer appropriate. Cutting off .a husband’s, right to recover such damages does not necessarily confer lipón a wife the right to recover; consequently this question is left for future consideration, and, there being no claim for damages before the jury and no evidence to warrant such recovery, the refusal of the requested instruction was not error. We-cannot say upon the evidence that the damages awarded by the jury are excessive within the rules governing the consideration of such questions.
In the taxation of costs the respondent was permitted to-tax an item for drafting the bill of exceptions used by her upon the first appeal in this case, reported at 130 Wis. 347, 110 N. W. 210. On the reversal of that judgment the respondent presented as an item of disbursements the whole
Eor tbis error in taxation of costs tbe judgment of tbe circuit court must be modified by striking therefrom tbe item of $146 above mentioned, and, as so modified, affirmed, tbe costs of tbis court to be taxed against tbe respondent.
By the Court. — It is so ordered.