87 Wis. 258 | Wis. | 1894
The main facts of this case, as they appear by the testimony on behalf of the plaintiff, are as follows:
In the village of Fairchild there is a street running east and west, and another street running north and south, and, a short distance east from the point where they intersect at right angles, the Omaha Railroad runs northwest and southeast, crossing both of said streets, and leaving a triangular piece of ground, bounded on the northeast by the railroad, on the south by the east and west street, and on the west by the north and south street. A short distance southwest of the railroad, and parallel to it, there is a street called “ Railway Avenue,” which intersects the north and south street in such a way that, if it were continued on to intersect the east and west street, it would cross said tri
On the 25th day of June, 188S, the plaintiff, a lady about forty-five years of age, and her daughter, about twenty, years of age, and another lady, came into the village on the east and west street, riding in a light democrat wagon drawn by an old span of horses which had been owned by the plaintiff’s husband about fourteen years. The wagon had springs under the box, and a spring seat in which the three were riding, and the daughter sat in the middle and drove the team. As they came to the railroad, they stopped and waited for a train to pass, and there was an engine standing on the track near by. They crossed over the railroad, and drove on west, on the east and west street, the team going on a trot. When they came near the junction of the old wagon road, the engine on the railroad blew off steam, which frightened the horses, and they turned to the right, and jumped the ditch in the direction of the wagon road, and when the wagon struck the ditch it threw the plaintiff out on the ground and injured her severely and permanently. The daughter held the lines tightly and evenly, and tried to keep the horses on the road, and soon after turned them back into the traveled track, and only lost control of them for a moment, if at all, when they jumped the ditch. The traveled track is very close to the ditch. It seems to have been an instantaneous swerving of the team to the right, while they were trotting, caused by the blow
These are the main facts upon which the jury found a general verdict for the plaintiff for $2,500 damages. There was a motion to direct a verdict and a motion for a new trial on behalf of the defendant, both denied, upon which this court is asked to review the evidence and pass upon the merits of the case.
1. It is contended by the learned counsel of the appellant that there was a material variance between the place of the. accident as proved, and that described in the notice and complaint. It is true that in some respects and particulars there was a variance. Huron street was mentioned for the east and west street, and there was a difference in distances. But both the notice and the complaint describe the place where the accident occurred as where Huron street intersects with a continuance of Railroad avenue. What was called a continuance of Railroad avenue was the old wagon road above described, and any one by looking at the map would know that it was the east and west street, and not Huron street, that so intersects with the old wagon road. A notice that directs the authorities of the village, clearly and unmistakably, to the exact spot or place of the accident, is sufficient. Thompson v. Jones, 4 Wis. 106; La Crosse v. Melrose, 22 Wis. 459; Teegarden v. Caledonia, 50 Wis. 292; Fopper v. Wheatland, 59 Wis. 623; Wall v. Highland, 72 Wis. 435; Elliott, Roads & S. 475; Cloughessey v. Waterbury, 51 Conn. 405; Sargent
2. It is also contended that the said ditch was not an insufficiency or want of repair, in the meaning of the statute. This was a question of fact for the jury, and their verdict on that question ought not to be disturbed unless it is clearly against the evidence. It seems to me that the ditch, so situated, was an insufficiency in the street itself. Instead of grading the whole street, the village graded a mere wagon track south of its center line, barely wide enough for two teams to pass each other, and dug or left this ditch exactly in the center of the street, and as a boundary to the grading and very close to the traveled track, and so close that a slight swerving or stepping aside of the team would bring the wagon into the ditch. The bare statement of the condition of this street is sufficient to show that the ditch, taken in connection with the narrowness of the traveled track and its nearness to it, was not only an insufficiency, but a dangerous one to the traveling public. It was left entirely unguarded. It was like a bridge without a railing. The facts that the old wagon
The learned counsel contends further that the accident did not occur on the east and west street, but on the old wagon road, which was not a highway or street of the village. But the intersection of the old wagon road with this traveled track was exactly in the center of the street. The plaintiff’s team did not get out of the east and west street and the accident occurred in the center of that street at the ditch. The plaintiff herself did not get further out of the traveled track than the ditch, and when the wagon struck the ditch the team was instantly turned back into the track. There was not a straying from the traveled track sufficiently to make the authorities cited by the learned counsel applicable.
The ditch was a part of the improvement of the street. It was left by scraping the earth from that point towards the center of the traveled track, and appears to have been intended as a ditch to carry off the water and protect the grading, for it extends all the way on that side to the railroad ditches. It required but very little turning to the right to bring the right wheel of the wagon into the ditch and tilt the
3. It is contended that the daughter of the plaintiff was negligent in not restraining the team from leaving the track, and that she lost control of it. She testified that she did not at any time lose control of the team, but kept the lines taut and straight, one in each hand, and that she brought the horses back into the track instantly, as soon as she observed them turn into the ditch. “A horse is not to be considered uncontrollable that merely shies or starts or is momentarily not controlled by his driver.” Titus v. Northbridge, 97 Mass. 258.
4. It is contended that the court should not have submitted to the jury the question whether the street was unsafe for travel by reason of the alleged ditch being in such close proximity to the traveled track. That was the material question in the case.
5. It is claimed that the court erred in expressing an opinion as to where the barrier should be placed at the ditch, as a warning or defense to travelers. That was quite immaterial, for there was no barrier there. It may have been very proper advice to the village trustees, in order to guard against future accidents, but it was immaterial to this case, and a harmless error.
We are satisfied that the verdict was warranted and is supported by the evidence, and we can find no error in the record.
By the Court.— The judgment of the circuit court is affirmed.