Loberg v. Town of Amherst

87 Wis. 634 | Wis. | 1894

Pinney, J.

1. The uncontradicted evidence makes it very-plain that the crosswalk extending from the western portion or side of the highway, turnpiked up as it was, over the so-called depression, gutter, or ditch, was in no just or proper sense an obstruction or defect in the highway in question. In respect to the manner of its construction, its situation and location with reference to the sidewalk on the west side of the highway and somewhat above it and the ditch beneath it, as well as the highway itself, there is no question or controversy. There was no question to be submitted to the jury in reference to this so-called crosswalk or bridge. It was clearly a public convenience and a reasonable necessity in the use of the road and sidewalk along it for those living on and along the east side of the highway, or who desired to cross over from thence to the sidewalk and pass upon it, either south into the village or north to or near the village school. It was substantially like the crosswalks in general use over gutters and ditches along streets in cities and villages and ordinary highways where crosswalks are needed. It was not likely to form any hindrance, inconvenience, or delay to any one traveling along or upon the turnpiked portion of the highway, or to any part of it designed and fitted for travel with ordinary vehicles; and the highway at this point, as turn-piked and in its ordinary condition for use, was of ample width. The ditch over which the crosswalk extended was designed and convenient only for drainage, and the cross-ivalk was a legitimate and proper convenience to enable pedestrians to cross it. It had been in use for' two years and a half, so far as appears, without complaint, and with the presumed sanction at least of the town officers. Ditches or gutters, with walks across the same for the use of pedestrians, are of such common necessity and general use that they cannot be considered as defects or obstructions in the highway. As it has been repeatedly held, the town is not bound to fit and maintain the highway for use and travel in its entire width, nor is it an insurer of the safety of the persons and property of travelers along it. Its liability is founded only upon some fault or negligence on the part of the town, and a finding that the crosswalk or bridge in question was a defect or obstruction, in view of the description of it by the plaintiff and his witnesses, would be manifestly without proper evidence to support it.

2. Assuming that the cause of the fright of the horse .which resulted in the injury to the plaintiff was solely the ■presence of the mortar boxes, etc., on the opposite side of •the highway, in front of Jensen’s house, and that these objects wmré likely to frighten horses of ordinary gentleness driven on and along the highway, yet we think that the evidence wholly fails to show that the defendant town is liable for the damages which ensued. We think the evidence of Jensen’s occupation and use of the premises, and ■his acts of ownership over them, in front of which he had placed the boxes, was presumptive evidence of ownership of the premises, so as to make him an abutter on the highway, with the rights of such, whether he owned the fee to the center or only to the margin. As such, he had a right ■ to use temporarily a reasonable portion of the street for the deposit of the mortar boxes, etc., while necessarily used in plastering his house. This right is born of necessity and justified by it. But the necessity need not be absolute. It is enough if it is reasonable, and this temporary use of the margin of the highway by him for that purpose was lawful. As fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, ■ and it may lie there a reasonable time; and, becausé building is necessary, materials proper and adapted to that purpose may be placed in the street, provided it be done in' the most convenient manner; and so, as to the repairing of a house, the public must submit to the inconvenience necessarily incident thereto, but, if prolonged for an unreasonable time, such use of the street becomes unlawful. Hundhausen v. Bond, 36 Wis. 29; Raymond v. Keseberg, 84 Wis. 302; Calanan v. Gilman, 107 N. Y. 360, 365; Clark v. Fry, 8 Ohio St. 373, 374.

The question of reasonable necessity and use is ordinarily one for the jury, and usually arises where a larger portion of the street is thus occupied than is deemed fairly necessary, or its use is claimed to have been unreasonably prolonged ; but where the facts are not disputed, as in this case, and no more space was occupied on the margin of the highway than was actually occupied by the two mortar boxes, etc., and there is no claim that the use had been unreasonably prolonged, the case ought not to be submitted to the jury to find, perchance, a verdict which would be a denial of the legal right under conceded facts, and which it would be the duty of the court to set aside.

Although Jensen might possibly or probably have been able to use the mortar boxes in his yard or garden, we do not think he was bound to do so at the peril of injuring his shrubbery or plants, or that he was precluded on that account from the exercise of his rights as an abutter on the highway. The offer of proof on that point was made after the testimony in the case had been closed, and it was discretionary with the court whether it should be received, and it was not error to reject it. Had it been received, it could not have affected Jensen’s ri'ght to have used the margin of the highway as he did.

In Cairncross v. Pewaukee, 78 Wis. 70, it was pointed out that: “ The purpose for which a thing is in the street must and does determine in many cases whether it is there rightfully or not. Take the case of Bloor v. Delafield, 69 Wis. 273, where the court held that the mortar box was an obstruction in the highway when placed within the way as a place of temporary deposit merely; yet, if such mortar box had been placed on a wagon and carried along the highway for the purpose of being transported from one place to another, it might have been equally an object in the way which would naturally frighten horses, but there can be no doubt that in such case it would have been rightfully in the way, and neither the owner nor the town would have been liable for an injury resulting from its being there. . . . The liability of a town or other municipality for permitting objects which are naturally calculated to frighten teams to remain in the highway arises out of the fact that they are permitted to be there for an unlawful purpose.” It is clear, upon the undisputed facts in this case, as well as upon the fact offered to be proved by the plaintiff, that the mortar boxes, etc., in question, at the time of plaintiff’s injury, were lawfully in the highway. This is in conformity with the case of Jochem v. Robinson, 66 Wis. 638, and Cairncross v. Pewaukee, 86 Wis. 181.

3. Upon still another ground we think that the court properly directed a verdict for the defendant. There was no evidence of notice to the town authorities that an unlawful or unreasonable use was being made of the highway by Jensen, the abutter thereon, in consequence of his having placed the mortar boxes on the margin of the street in order to plaster rooms in his house. There was nothing in their mere presence there for such a purpose to operate either as constructive notice to the town authorities, or as actual notice to the overseer, who merely saw them there the day before the accident, that Jensen was exceeding his prima facie rights as an abutter on the highway, or making an unreasonable and unlawful use of it. Cairncross v. Pewaukee, 86 Wis. 181; Bartlett v. Kittery, 68 Me. 358.

Eor these reasons we hold that the circuit court rightfully directed a verdict for the defendant.

By the Court.— The judgment of the circuit court is affirmed.