200 Wis. 87 | Wis. | 1929
It is urged that the finding that the icy condition had existed for three weeks is not supported by the evidence, and this is probably correct, but the question is evi-dentiary only, not one of ultimate issuable fact, and the finding is immaterial.
Want of a barrier in a highway where its absence renders a highway unsafe constitutes an actionable defect, and whether its absence renders the highway unsafe is a jury question. Branegan v. Verona, 170 Wis. 137, 174 N. W. 468; Bowen v. Osceola, 185 Wis. 11, 200 N. W. 766.
It is contended that here there is no evidence to show that a barrier was necessary to reasonable safety of the street. But we consider that the finding must be sustained. The jury took a view of the premises. ' The evidence shows a steep hill, a ditch at the side, an embankment, that the automobile slipped off the embankment into the ditch, turned over two or three times and landed at the bottom of a ravine. These bare facts, with the aid of a view to assist in evaluating them, support the finding.
It is contended that under the evidence the plaintiff was guilty of contributory negligence as a matter of law. Under the rule of some of the Wisconsin cases this contention should be sustained, unless these cases are modified. A case exactly in point upon this proposition is Raymond v. Sauk
Indirectly supporting this view are the sidewalk cases. Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087, considers the previous sidewalk cases and confirms the rule that when one walks on a sidewalk containing a defect of which he knows and is injured by it, he is guilty of negligence unless at the immediate time he forgets its existence and shows circumstances reasonably excusing his forgetful
The case of Coppins v. Jefferson, 126 Wis. 578, 105 N. W. 1078, involving an injury while driving on a road, restates the rule of the sidewalk cases and recognizes it as applying to roads, but held that the case was for the jury because in the dark the driver thought he had passed the place of the defect that caused the injury.
There are several other cases where plaintiff was driving upon a highway known to him to contain defects in which his negligence was held to be a jury question which should’ be considered in determining whether the plaintiff here was negligent as matter of law. In Luedke v. Mukwa, 90 Wis. 57, 62 N. W. 931, it was held not negligence as a matter of law for one knowing of the generally defective condition of a corduroy road to drive upon it when covered with water where the water concealed the depth of a hole into which his wagon dropped. In Jenewein v. Irving, 122 Wis. 228, 99 N. W. 346, 903, a woman on a country road was driving
In all these cases holding that plaintiff’s negligence was a jury question the extent or precise location of the defect causing the injury was not apparent from observation by the driver. And there are other cases in which the driver’s negligence was a jury question where he knew of a generally defective condition but could not observe the precise extent of the defect causing the injury. But in this case the icy condition and the precise contour of the road surface were known to plaintiff.
Upon consideration of the cases above stated we are of opinion that under such circumstances as are here involved the question of plaintiff’s negligence should be submitted to the jury. But this does not necessarily require affirmance of the judgment in this case because the fact on which plaintiff’s negligence must be grounded, if he was negligent, was not submitted to the jury at all. The question submitted to determine plaintiff’s .negligence should have been, in substance, not was he negligent in handling his automobile at the •immediate time of the injury, but was he negligent in attempting to climb the hill under the circumstances existing ?
The defendant should have been permitted to show that there was another street that plaintiff might have used, if there was one, and to show its condition and availability, and the obviously dangerous condition, if such existed. If such a street and plaintiff's knowledge of it had been shown, the court should have submitted the case to the jury to determine whether the plaintiff was negligent in using the street he did use under all the circumstances.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.