Jennings v. Town of Albion

90 Wis. 22 | Wis. | 1895

WiNslow, J.

Two grounds of error are urged:

1. It is said that it should be held contributory negligence, as a matter of law, to ride upon a seat not anchored to the wagon. We cannot so hold. It must be held a question properly for the jury.

2. Upon the direct examination of one Hurlburt, a witness for defendant, who was the road master of the district, he gave testimony tending to show that the alleged hole in the road was a very slight depression of a few inches only in depth. Upon cross-examination by plaintiff’s attorney he was asked whether he and another man did not work with a team and scraper several hours, filling up the hole with dirt, after the accident. Objection was made to this, question and to others of like tenor, as incompetent, immaterial, and not cross-examination, but the objections were-overruled, the court remarking that “ it' is only material as to whether there was a hole there; ” and the questions, were answered to the effect that they worked two or three-hours at the place in question. These rulings are claimed to be error. The great weight of authority is that evidence of subsequent repairs to a highway is not competent evidence to prove that there was a defect at the time of the accident. Elliott, Roads & S. 641, 648, and cases cited. It is claimed, however, by respondent’s counsel, that, though such evidence may not be admissible as affirmative proof of a defect in the highway, still that it was proper to cross-examine the witness in question as a means of testing his credibility, and, if possible, impeaching the truth of his former testimony to the effect that there was only a slight depression in the road. ITad the questions been allowed for this purpose, and the effect of his answers properly limited by the court, a different question would be presented, and a question which we do not decide. But there was no such limitation placed upon the questions or answers. The court said, in effect, that it was competent to prove the existence-of a hole by this evidence. This was certainly equivalent to saying that the testimony was -competent to prové the-negligence of the defendant. It was not competent for this purpose whether it was brought out by direct or cross-examination. For this error there must be a new trial.

By the Court.— Judgment reversed, and action remanded for a new trial.

Nbwmax, J., took no part.