75 Wis. 24 | Wis. | 1889
The plaintiff, with his wife and two children, in a light wagon drawn by one horse, was, at the time of the accident, traveling upon the highway leading from the "Welsh settlement to Mineral Point. It appears from the evidence that as he approached the ditch at which he was injured, and when 248 feet from it, he came to the top of a hill which descended for about 200 feet towards the place of the accident, and from that point to the ditch, a distance of about forty-eight feet, the road was nearly level. For that distance of 200 feet the traveled track appears to have been substantially on the line with the right of way, except that the lower end of it turned slightly to the plaintiff’s right as he was driving, and continued to turn in that direction until within a short distance from the ditch, when it began to turn quite abruptly the other way, and so continued for some distance beyond, until the road appears to have been at right angles with the road at the top of the hill. The ditch was evidently caused by the water running across the road, and ran at nearly right angles from it, on the plaintiff’s right as he came down the hill. There is evidence tending to show that it commenced some two or three feet from the traveled track, and at that point was from one to two feet deep, and widened and deepened rapidly, so that at a distance of from six to ten feet from the main traveled track it was from three to five feet wide, and from two to four feet deep, and was so overhung with
We must hold, upon principles too well established in this court to require the citation of authority, that the evidence is sufficient to sustain the findings of the jury to the effect that at the time and place of the accident the highway was insufficient and out of repair, and that the plaintiff was injured by reason thereof. The question whether the ditch was so connected with the traveled portion of the highway as to endanger the safety of those traveling thereon was, as we think, upon all the evidence, one of fact for the jury. Nor can we hold, as a matter of law, that the plaintiff was guilty of contributory negligence.
It is claimed that there is' no proof in the record of the service upon a supervisor of the town of the notice in writing, signed by the plaintiff, '“stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it, and that satisfaction therefor” was claimed of such town, within the time required by sec. 1339, R. S. The plaintiff testified upon the trial as follows: “I served a copy of this notice on the town clerk of the town of Linden, September 28, 1886, and a eopy of this on Mr. Coates, chairman of the town board of Linden. [Notices offered in evidence, hereto attached, marked ‘Exhibits A’ and ‘B.’] ” The notice thus put in evidence and marked “Exhibit A” was addressed “to the supervisors and clerk of the town of Linden, in said county,” and it is conceded that it was served on the town clerk, September 28, 1886, as stated in the testimony quoted. But it is claimed that while this testimony shows that such Ex-
Exception is taken because the court charged the jury that “it is claimed in this case that the horse at the time of the accident was running away or was not under the control of the plaintiff. If you find, from the evidence, that such was the case, and you find that if the horse had not been running away, or if it had been under the control of the plaintiff, this accident might not have happened, the plaintiff cannot recover.” Much discussion has been indulged by counsel as to the precise meaning of this portion of the charge. The ambiguity, if any, seems to arise from the repeated combined use of affirmative and negative expressions. The charge seems to have been to the effect that if the jury found,'from the evidence, that at the time of the accident the horse was running away or not under the control of the plaintiff, and that otherwise the accident might not have happened, then the plaintiff could not recover. It is said that this charge entirely ignores the lia
It is claimed that the finding of the jury to the effect that the overseer of highways had knowledge of the defect long enough before the accident to have remedied the same and thus have prevented the injury, was insufficient to charge the town; in other words, that the notice of a defect in a highway, in order to charge the town with injury therefrom, must be brought home to one of the supervisors, instead of the overseer of the district. Overseers are charged with the duty of repairing and keeping in good order the highways within their respective districts, and to remove all obstructions therefrom, and to execute all lawful orders of the supervisors. Sec. 1232, R. S. True, as officers, they are subordinate in rank to the supervisors of the town; nevertheless we must hold that notice to the overseer of a defect of a highway in his district is, in legal effect, a notice to the town.
Exception is taken because the court charged that “ the testimony relied upon to establish such runaway or such uncontrollableness is mainly the testimony of Mr. and Mrs. Lawinger as to what Mrs. Lawinger heard Mrs. Golds-worthy say upon the night of the accident, while the plaintiff was in the same room, without contradiction by the plaintiff.” We cannot think that such expression of opinion respecting the evidence, by the use of the vrord “ mainly ” in this portion of the charge, was unjust or prejudicial to the defendant; especially since the other testimony, if any, was circumstantial. Trial courts must be permitted to exercise some latitude in such expressions of opinion. Massuere v. Dickens, 10 Wis. 91. After stating the circumstances under which statements of the wife in the presence of the plaintiff would tend to constitute an admission on his part, the court charged the jury to the effect that if the
Error is assigned because the court refused to set aside the judgment and verdict, and grant a new trial, on the ground of newly discovered evidence. " It appears from the affidavits of George Morgan, in effect, that he and the plaintiff were together on the farm of John P. Jones, in the town of Mifflin, some days after the accident; that while then and there in conversation about the accident the plaintiff told him (Morgan) that the mare “ went down the hill on a hog-trot” on that occasion; that he could not keep the mare in the highway; that she would keep going toward the fence; that she ran into a ditch, where he and his wife were thrown out, in spite of his best efforts; that he attributed the accident to the fact that he was unable to keep the mare in the track or highway; that the harness on the mare that day was a miserable, patched-up affair, and the wagon was very poor and rickety. It also appears from the affidavit of Francis Little, in effect, that soon after the accident he met the plaintiff, with a bandage around his head, in the drugstore of John EL Yivian, in Mineral Point; that he then and there asked him what was the matter; that the plaintiff then and there replied, “I had a bad runaway in the Welsh settlement,” but made no complaint “ about the highway or its condition.” It also appears from the affidavit of Robert Hughes, in effect, that after the accident he met the plaintiff and his-sister in a hotel named, in Mineral Point; that he then and there had conversation with them about the accident; that the plaintiff then and there told him “ that he had had a terrible bad runaway in the Welsh settlement;” that the sister then and there, and
It appears from the affidavits of the several' supervisors of the town that such new evidence was not discovered until on and subsequently to November 3, 1888, notwithstanding soon after the accident, and at divers times before the trial, pretty thorough investigation and inquiries were made for the purpose of ascertaining all evidence supposed to exist, and pertinent to the defense.
The only remaining question involved is whether such new evidence is of such a character as to require the court, in the exercise of a sound discretion, to grant a new trial. On the one hand, it is claimed that such new evidence is uncertain, contradictory, and cumulative; on the other hand, it is claimed that it is new, and not cumulative. No evidence was given or attempted to be given upon the trial of any admissions made by the plaintiff, except by way of acquiescing in statements made by his wife. As to such statements, as already indicated, it was competent for the jury, under the charge, to find, either that the plaintiff, by reason of his condition- at the time it is claimed the statements were made, did not hear them, or, if he did, that by reason of such condition he did not fully realize their import or was not able to contradict them. The finding of the jury, therefore, is to the effect that the plaintiff made no admission respecting the uncontrollability of his horse.
By the Court.— The judgment of the circuit court and the order refusing to grant a new trial are each reversed, and the cause is remanded with direction to grant a new trial upon condition of- the payment, within a time to be , named, of the plaintiff’s taxable costs in the trial court, and i for further proceedings according to law.