Laird v. Town of Otsego

90 Wis. 25 | Wis. | 1895

Pinney, J.

1. The giving of the notice required by the statute (sec. 1339, R. S.) was a condition precedent to the-right of the plaintiff to recover. Without an allegation showing that notice had been given, the complaint would have been demurrable. Sowle v. Tomah, 81 Wis. 351; Weber v. Greenfield, 74 Wis. 234, 236. Whether the notice in the present case ivas sufficient is not entirely free from doubt. “ One half mile east of the Tillage of Otsego in said town,’5' is not a certain and definite point. Erom what point in the Tillage would the half mile be estimated or measured? The obstruction or insufficiency in the highway might be of such a character or so conspicuous as to assist in finding the point intended. That the obstruction was “ near to and a little east from the farm house of one Thomas Bowden ” serTed to indicate the vicinity of the obstruction, and that there was “ an embankment at the point named ” where .the plaintiff received the injury, serves, we think, in connection with the character of the alleged obstruction, namely, “ old plank piled in the traveled part of said highway,” to render the notice reasonably certain and point out sufficiently the place of the alleged obstruction. It appears that there was a bridge across the road at the point in question, on the west side of which, and by the side of the bridge, there was a telegraph pole, and by reference to which the notice could have been made more certain; but it cannot be said that the notice in this case, as in Weber v. Greenfield, 74 Wis. 234, was inaccurate and afforded no aid to the authorities to investigate and find out whether or not the highway was insufficient. It does not occur to us that with the description contained in this notice there ought to be any practical difficulty in ascertaining the place intended to be described. Where a notice conveys the necessary information to the proper person, it is sufficient, although it might have stated it with greater particularity. We think that the notice was sufficient, within previous decisions. La Crosse v. Melrose, 22 Wis. 463; Wall v. Highland, 72 Wis. 435; Hein v. Fairchild, 87 Wis. 258; Fopper v. Wheatland, 59 Wis. 623; Salladay v. Dodgeville, 85 Wis. 318.

2. It was contended on behalf of the defendant that as a matter of law neither the plank on the east side or west side of the bridge could be considered as an insufficiency or de-feot in the highway. The case seems to have been submitted to the jury wholly in respect to the pile of plant and rubbish on the west side of the bridge. Whatever force there may be in the argument that old material, to the extent mentioned, left by the roadside upon repairing a bridge or culvert ought not to be regarded as an insufficiency, defect, or obstruction in the highway, we think that, under the evidence in this case, that was an argument to be addressed to the jury and not to the court, and that it was for the jury to find whether the plank and rubbish were an object naturally calculated to frighten horses of ordinary gentleness, when properly driven on and along the highway. Foshay v. Glen Haven, 25 Wis. 288.

3. The two questions which the defendant’s counsel asked to have submitted to the jury were fairly within the issue and presented by the evidence on the part of the plaintiff, referred to in the foregoing statement. It tended to show that, after passing the pile of plank and rubbish on the west side of the bridge, the plaintiff’s husband had been able to so control the horse as to bring him more into the middle of the road and from the south side of the embankment, and that the horse “ seemed to take another fright; it looked at the plank [on the east side] and shied away; I suppose that is what it was frightened at.” The jury might have found upon the evidence that, but for the second fright of the horse, the plaintiff would have passed on in safety, and that such second fright and shying of the horse were the efficient and immediate cause of the injury. The defendant was entitled to have this question submitted to the jury under proper instructions. As the court was charging the jury with a view to a general as well as a special verdict, and in view of the evidence, the defendant might properly insist that the jury should find, first, whether the horse was frightened and shied at the plank on the east side, and whether that was the efficient and immediate cause of the accident. 'The court refused to submit these questions. If they were somewhat inartisticaUy framed, they were certainly sufficient to call the attention of the court to the defendant’s contention, and the effect of the instructions given was such as to withdraw the attention of the jury from this point, and the case was put to the jury upon the ground of a single alleged defect, “ this pile of rubbish by the highway,” to say whether it was “ such a defect as'would make the town liable within the rule,” and whether it “ was such an object in the highway” as should naturally and reasonably be ex-r pected to produce such an accident. There was a pile of plank and rubbish west of the bridge, which first frightened the horse and made it shy, and there were the plank on the east side, at which it “seemed to take another fright; it looked at it and shied the other way.” We understand that the instructions refer to the pile west of the bridge, and that the jury may have fairly so regarded them, and in that view they had a tendency to withdraw the attention of the jury from the question whether the fright of the horse at the plank on the east side of the bridge did not cause the plaintiff’s injury. If the plank on the east side of the bridge were the true cause of the accident, and they were not a defect -in or obstruction of the .highway, then the plaintiff could not recover.

Eor the errors pointed out, in not submitting the questions stated to the jury, and in the instructions given, there must be a new trial.

By the Oowrl.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.

Newman, J., took no part.