70 Wis. 10 | Wis. | 1887
The following opinion was filed November 1, 1881:
The highway in question crossed Rush river in the defendant town. Formerly there was a bridge across the river at the point of crossing, but it had been removed some years before the accident and not rebuilt. The highway going west passed down a somewhat precipitous bank a few feet high, on the east side of the river, and from the bed of the river west the ground gradually ascended. The bottom of the river consisted of hard 'gravel, but something of a rut or hole had been worn therein by passing teams and vehicles. Ordinarily there was but little water running in the stream, and in an ordinary stage of water the crossing could be made without difficulty. The stream drained quite a large extent of country, and in times of heavy rains was subject to rise rapidly.
The plaintiff resided in Baldwin, about three miles from the crossing. He had frequently crossed the river at this point, and was well acquainted with the crossing and the character of the stream. On the day before the accident he crossed there, traveling west, with a team of horses and carriage, accompanied by one Brown. The jury found that the stream was then about eight feet wide, and about one and a half or two fqet in depth. On that occasion he went from his residence at Baldwin, in St. Croix county, to River Palls, in Pierce county. During the night and the following morning the rain fell heavily. He and Brown returned the next day by the same route. Before they reached Rush river they crossed other streams which had become much swollen by the rain-fall. When they reached the crossing of Rush river, the volume of water had greatly increased above that of the preceding day. The jury found that it was then about eight rods in width, and from three to four
Three fourths of a mile west of the crossing, a safe and convenient highway leading to Baldwin diverged from that upon which the plaintiff was traveling. He knew of this highway.
Upon the foregoing facts, the jury found that the plaintiff was not guilty of any want of ordinary care which contributed proximately to the injuries of which he complains. The jury also found that the highway at the crossing, in view of its situation and liability to overflow, was not in a reasonably safe condition for the passage of teams, and that the accident to the plaintiff occurred by reason of such unsafe condition. Although it may be difficult to understand upon what grounds the jury acquitted the plaintiff of contributory negligence, yet, for the purposes of this appeal, the above findings will be regarded as verities in the case.
Numerous exceptions were taken on behalf of defendant to the charge of the circuit judge to the jury, and his refusals to charge as requested in its behalf; to questions sub
1. After stating that the plaintiff claimed there was nothing in the appearance there, or from what he knew of the stream, to put him upon inquiry or reasonably to impress upon his mind, or upon the mind of any ordinarily prudent man, airy sense of danger, the learned circuit judge proceeded to instruct the jury as follows: “ The plaintiff had a right to presume, in the absence of anything appearing to the contrary, in the absence of anything which under ordinary circumstances would show a different state of things, he had a right to presume that the town authorities had kept the road as it should be; and, if they had failed to keep that road in a sufficient condition, he had a right to act upon that .presumption, in the absence of anything to show a contrary state of things. He claims that he went along there, and saw a wagon-track that he thinks passed the same day. and that he saw no barrier or danger signals to warn him. It is undoubtedly true that where a main traveled road, along which there is a great deal of ti’avel, gets out of repair and is suffered to remain so for a dong time, in an eminently dangerous condition, it is the duty of the town board, if they don’t make the proper repairs upon it to make it safe, to erect some barriers and to put up some signal warning parties of the dangerous condition of that place. I say that is the rule where it is known to be dangerous, — -where the town board knows it to be dangerous and allows it to remain so for a considerable length of time. The absence of these barriers would not, of course, justify the plaintiff in rushing into danger if he could see it, but he could have the right to presume something, in the ab
While the above instructions may contain a correct exposition of the law in a case to which they are applicable, we are clearly of the opinion that they are inapplicable to the present case, and might have misled, and probably did mislead, the jury. In the first place we think undue prominence is given to the claim of the plaintiff that he was justifiably ignorant of the danger to which he was exposed. As already stated, he was well acquainted with the crossing, the character of the stream, and its liability to rise suddenly when there -was a heavy rain-fall. The proof shows conclusively that he could see the width of the stream for many rods before he reached it, and, as already stated, the jury found he could have retreated after he ascertained its condition. The current of the stream on the east bank was quite narrow, the depth of the water only three or four feet, and yet it was running with a force sufficient to sweep a span of horses and carriage down the stream. Some adequate idea of the violence of such a torrent must have been suggested to any one who saw it, and it seems hardly credible that there was nothing in the appearance of the stream to impress a reasonably prudent mind with a sense that it would be dangerous to attempt to drive through it.. There is no room, therefore, in this case, for the presump-, tion.of safety which grows out of the duty of the town to
2. There was much testimony tending to show that the freshet or flood in question was a very unusual and extraordinary one. Counsel for the defendant requested the court to submit the following question to the jury: “ Was the storm at this time an exceptionally heavy storm all over this section of the country, which made the water very high in this locality ? ” The court refused to. submit this question, but in its stead submitted the following: “Was the freshet in question exceptionally high,— so much so that it was not reasonably to be anticipated by the town authorities ? ”
We think the question proposed on behalf of the defendant, or its equivalent, should have been submitted to the jury, and that the question submitted is not such equivalent. In Allen v. Chippewa Falls, 52 Wis. 430, we had the question of the duty of the city to construct gutters along its streets to carry off the water which might gather in them. It was held that the city was only bound to provide gutters sufficient to carry off in safety the ordinary rain-falls, or ordinary flow of surface water occasioned by the storms which are usually liable to occur in this climate and country; and if the gutters overflowed and injured the property of adjoining owners by reason of an unusual or extraordinary rain-fall and flood, the city is not liable. The same prin
The infirmity in the question submitted is that it does not present to the consideration of the jury the true test of the liability or want of liability of the town, which is whether the freshet was or was not an unusual and extraordinary one. The question submitted was whether the freshet in question was one reasonably to be anticipated by the town authorities. In this latitude and climate, unusual and extraordinary rain-falls and freshets may reasonably be anticipated by any one at long intervals and uncertain times. Hence the. jury may have found that this freshet in question was an unusual o.r extraordinary one, and yet that it might reasonably be anticipated by the town author
The foregoing defect in the special verdict is not cured by a general verdict, for the jury did not return a general verdict, although counsel for defendant seem to concede that they did so. They merely assessed the plaintiff’s damages in answer to the question,'“ITow much damage has the plaintiff sustained by reason of the accident?” But there is no finding for the plaintiff.
For the errors above indicated the judgment of the circuit court is reversed, and the cause will be remanded for a new trial.
By the Court.— It is so ordered.
In the taxation of costs, the appellant was allowed $115 for the printing of the case. The respondent moved for a re taxation. The following opinion was filed January 10, 1888:
The plaintiff moves for a re taxation of costs for the alleged reason that the sum allowed for printing the abstract of the case is excessive. The abstract contains 174 pages, and vet it is the common case of an action against a town to recover damages alleged to have been caused bj^ a defective highway. There is nothing intricate about the case, either in its facts or in the law governing it. The abstract would be greatly improved by condensing it to one half its present limits, and it should not have exceeded that. "We would reduce the sum allowed for it in that proportion -but for the fact that the plaintiff proposed 198 amendments to the bill of exceptions, most of which were allowed. These amendments swelled the record, and in
Under these circumstances we adopt a medium line. We grant the motion without costs, and direct the clerk to deduct $30 from the allowance for printing abstract of case.
• By the Court.— Ordered accordingly.