121 Wis. 85 | Wis. | 1904
Upon the trial of tbis case two sharply conflicting theories were presented and supported by evidence: First, that the decedent drove more or less rapidly toward the bridge, with his horse under control, until he reached or passed the watchman, and was then unable to stop' before going into the river, upon which theory it was claimed he was guilty of contributory negligence, under the rule laid down in Stephani v. Manitowoc, 101 Wis. 59, 76 N. W. 1110; secondly, it was contended by the plaintiff that before reaching the bridge the horse became uncontrollable, and while so plunged into the chasm in the highway. The jury, by answer to the third question, found that the horse was beyond control at and immediately prior to the time intestate-drove into the river. This necessarily must be understood as adopting the plaintiff’s theory. That being assumed, the defendant insists that there is no evidence to support the answer to the fourth question, that such loss of control was only momentary. This theory of the driver’s loss of control of the horse rests upon the testimony of two witnesses to the effect that, as he passed an electric motor car at a point approximately ninety feet from the bridge, the horse was frightened, shied, and from that point ran or galloped uncontrolled along the street to and into the river. There is.no other evidence whatever of any loss of control, or any change in the conduct or pace of the horse, from a point at least two or three hundred feet away. Thus is presented the question whether a horse can, by any reasonable possibility, be said to be only momentarily uncontrolled while running a distánce of eighty or ninety feet along a highway, in the sense in which that expression is used in the law laid down on the subject of liability of municipalities for defects in their highways.
The rule was early established in Massachusetts and Maine that such liability of municipalities is special and statutory; that only where the defect in the highway is the sole, proxi
In the present case the horse first shied to one side, and’ then started forward in a gallop. According to plaintiff’s-witnesses, the deceased practically at once pulled back on the-lines so that the traces were loosened, and the horse traveled" at least sixty or seventy feet drawing the vehicle by the bit, and resisting the efforts to stop his forward movement. It cannot be doubted that when the horse recovered from his-swerve, and started upon a forward course in resistance to-the efforts to stop him, the momentary escape from control contemplated by this rule of law was over. Thenceforward he was a runaway horse, and that, too, wholly without re
The views thus declared result, of course, in the conclusion that the fourth question should have been answered “Yes,” and that the trial court erred in denying appellant’s motion to strike out the negative and insert an affirmative answer. That conclusion being reached, and no reason appearing why a new trial is necessary, our duty is to order done that which ought to have been done, namely, to make the change and render judgment accordingly. This decision renders unnecessary consideration of certain other errors assigned by appellant.
By the Court. — Judgment reversed, and cause remanded with directions to grant defendant’s motion to amend the-special verdict by changing the answer to the fourth question therein from “No” to “Yes,” and, upon the verdict as so amended, to render judgment for the defendant.