99 Wis. 361 | Wis. | 1898
The following opinion was filed February 8, 1898:
This action was brought to recover damages sustained by reason of an alleged defective highway. The answer consists of admissions and denials, and alleged contributory negligence. At the close of the trial the court directed a verdict in favor of the defendant upon the ground that the alleged defect in the highway was not the proximate cause of the injury. From the judgment entered thereon the plaintiff brings this appeal.
It appears from the plaintiff’s testimony, in effect, that at the time of the accident the plaintiff was twenty-four years of age, and lived with his father on a farm about two and a half miles south of the village of Rome; that some time
It appears that the stone was three feet across one way and three and one-half the other way, and from sixteen inches to about two feet above the ground, and from six to ten inches from the wheel track; that there was about twenty-six feet clear space of traveled track opposite the stone. The plaintiff was alone at the time of the accident, and the statement made as to the manner of its occurrence is taken directly from his testimony.
We shall assume, for the purposes of this appeal, as the trial court manifestly did, that whether the stone was so near the traveled track as to constitute a defect, within the meaning of the statute, was a question of fact for the jury. We shall also assume that whether the plaintiff was guilty of contributory negligence in striking the mare with the whip, as he did, under the circumstances, was a question of fact for the jury.
The right of action is purely statutory. To recover, it must be made to appear that the damage happened “ by reason of the insufficiency or want of repair ” of the highway. Sec. 1339, E. S. 1818. No one claims that this statute creates an absolute liability in every case where such defect oontributes to the injury. To be liable, the defect must be the cause of the injury; that is, the proximate cause of the injury. Flagg v. Hudson, 142 Mass. 288; Cohen v. New York, 113 N. Y. 537; Jackson v. Bellevieu, 30 Wis. 250; Roberts v. Wis. Tel. Co. 77 Wis. 592; Bishop v. Belle City St. R. Co. 92 Wis. 143; Salzer v. Milwaukee, 97 Wis. 471.
This court, following Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 474, 475, and former decisions of this court, said in Atkinson v. Goodrich Transp. Co. 60 Wis. 156: “The primary cause may be the proximate cause of the disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force ap
In the case at bar it is obvious that the primary cause of the injury, and which led by regular sequence to it, was the breaking of the line. After that line broke, the plaintiff, according to his own testimony, pulled on the left line, and the mare veered to the left, and soon after his cart struck the stone, and he was injured; and if the line had not
By the Oou/rt.— The judgment of the circuit courtis affirmed.
As indicated in the brief of counsel for the plaintiff, on their motion for a' rehearing, this case was-determined when there was a vacancy npon the bench, and by an equally divided court. The facts, however, are undisputed and very simple. Whatever difference of opinion there may be as to the application of the law to the particular facts, yet the law on the subject is familiar to the bench and bar.
By the Gourt.— The motion for a rehearing is denied.