Fisher v. Town of Franklin

89 Wis. 42 | Wis. | 1894

PiNNEY, J.

The evidence tends to support the finding of the jury as to the defective and insufficient condition of the highway and bridge. Upon the question whether the plaintiff was guilty of negligence contributing to the injury of which the plaintiff complains, we think that the finding of the jury is against the uncontradicted evidence, and that for this reason the recovery cannot be sustained. It appears from the testimony of the plaintiff and one Liscomb, the only other person present, who was helping her to haul hay, that they had passed over the bridge in the morning in going for the hay; that after it was loaded it tipped over in driving out of the field, and when it was righted up they took two levers along with which to steady the load when necessary. There were from 1,000 to 1,500 pounds of hay in the load, and the. plaintiff was driving the team,— a safe and quiet One, which the plaintiff was accustomed to drive and use in work on the farm, and had been for years. There was considerable snow on the ground, in the highway, and on the bridge and approaches, and it had accumulated on the south side, so that the travel was crowded to the extreme north side. It was thawing, and rained some, and the snow was soft, and snow water ran in the roads. They were going easterly, and when going upon the bridge the rack caught upon the forked post, a prong of which projected southerly, and it stopped the team still. The plaintiff and Liscomb were both at the time on the load, and he got down, and found the forked post had caught on one of the crosspieces of the rack; and he tried to cut it off, and cut it as far as he dared, and got upon the load again, and took hold of one of the levers inserted under the binding pole, and went upon the end of it, and tried to hold the load so it would not go over. The plaintiff started the team, and the load' went over and down into the gully; and she was thrown down into it, a distance of about nine feet, and about seventeen feet from the embankment and road, and was severely injured. The sleigh stood upon the road, turned up edgewise, after the rack and load had slipped off. She gave a spring when she started, and it threw her away over the hay. When Liscomb cut the post, she sat on the front of the load, and the sled was right up close to the edge of the bridge, and after cutting the post and getting on the load she started the team, when he told her to. That when the sled first struck the post it drew the front runner out of the track, and it settled down towards the north side. On being asked what he meant by saying he chopped the post as far as he dared to, and why he did not chop further, he said that the stake was holding the load, and when he loosened the post up a little the load gave, because the runner had settled down. The plaintiff described the occurrence in substantially the same manner, saying that when the post' caught it drew the horses back, and the sleigh down still further to the lower or north side of the bridge. “Mr. Liscomb got off the load, looked under there, and saw that we were fast on the stake; and he cut it very near loose, and then got back on the load, and got on the end of the lever, and told me to turn the horses as far to'the right as I could. Joist as the front runner left tbe bridge, and while the hind runners were on it, and I had started probably about a foot, the load went over. I knew the front runner was out of the track and had settled down somewhat, and that he was going out on the lever to steady the load and prevent its slipping over. I started up the team when I saw that he was all prepared.”

The methbd which the plaintiff and Liscomb adopted to extricate the sleigh and load, situated as they were on the brink of a very deep ravine or gully, with the load tipped or inclined somewhat towards it, obviously was an imprudent and dangerous one, particularly to the plaintiff, in sitting upon the load and attempting to drive the team when it was apprehended that the load might tip over into the ravine. The evidence is clear that the plaintiff knew and understood the situation, and she must have appreciated the risk which she assumed in remaining on the load and attempting to drive off the bridge and out of the difficult situation. She is clearly chargeable with negligence in the course she pursued, and must be held to have taken upon herself the risk of what must be regarded ■ as a dangerous experiment. The dictates of .common prudence required that she should have resorted to other and less hazardous means of extricating the sleigh and load from the predicament in which it had been placed.

Ordinarily, the question of contributory negligence is for the jury; but where negligence is clearly and conclusively established, and there is no fair inference arising upon the undisputed facts that the plaintiff is free from fault, it is then the duty of the court to deal with the question as a matter of law, and direct a verdict accordingly, or set it aside if found for the plaintiff. It is only necessary in this case to repeat what was held in Goldstein v. C., M. & St. P. R. Co. 46 Wis. 406: “ If a person places himself in a position of known danger, when he might avoid it, he is guilty of negligence; and although the danger may have been caused by the negligence of another, if the party thus taking the risk of injury is injured thereby, he cannot maintain an action for damages against the other, because his own negligence contributed to the injury.” We hold that the proof of contributory negligence in the present case is so clear and decisive and so entirely free from doubt that, as a matter of law, the verdict should have been set aside and a new trial granted. It was therefore error to overrule the motion the defendant made for that purpose.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.