Meidenbauer v. Town of Pewaukee

162 Wis. 326 | Wis. | 1916

Maisshall, J.

Was the question, “Did tbe unguarded bole witbin tbe limits of tbe highway cause such highway to be in a condition of insufficiency,” fatally defective? Counsel for appellant suggests it was because tbe proper test of tbe suitableness of a highway is whether it is reasonably safe for public travel by persons in tbe exercise of ordinary care, and that tbe way tbe question was worded tbe jury may not have gotten that idea. Furthermore, that tbe recitals as to the quarry bole being within the limits of the highway and its being unguarded, invaded the province of the jury.

There was no dispute as regards the location of the quarry hole, nor as to its having been, at the time of the accident, and for a long time prior thereto, wholly unguarded. Therefore there was nothing improper in reciting such undisputed facts. If there were- any room for jury interference in respect to the matter, it was as to whether the unguarded hole, under the circumstances, rendered the highway not reasonably safe for travel by persons in the exercise of ordinary care. That matter was wholly left to the jury, if the words “caused the highway to be in a condition of insufficiency” in connection with the instructions, unprejudicially submitted it.

The question is far from being a good model to be followed ; but there are many such situations which may exist without involving fatal infirmity. As contended by counsel for appellant, the better way is to submit such a matter to a jury by a question calling for a finding as to the sufficiency of the highway, specifying plainly what will constitute it, as, whether it was reasonably safe for travel by persons in the exercise of ordinary care. Wheeler v. Westport, 30 Wis. 392; Kortendick v. Waterford, 142 Wis. 413, 418, 125 N. W. 945. That has been said over and over again, and there is little excuse for not phrasing a question, in a case of this sort, in harmony therewith. However, the wording of the statute, sec. 1339, is that a municipality shall be liable for damages which “shall happen to any person, his team, carriage or other property by reason of the insufficiency or want of, repairs” of any highway therein. The court early construed such statute in respect to what constitutes insufficiency, and the better way, in submitting such a matter to a jury, is to embody such construction in the question. A failure to do so or to give instructions in respect to the matter, might be prejudicially fatal in case of such a question being requested and refused and the jury not being so instructed as to enable them to understand what constitutes the insufficiency of the statute. No such request was made in this case, and the jury were informed by the court’s instructions as to the proper test of “insufficiency.” They were told that, in determining the question, to consider whether, under all the circumstances, the lack of a railing or barrier rendered the highway where the accident occurred “not reasonably safe.” That meant, plainly, not reasonably safe for public travel. They were further directed that, in case of their finding “from a preponderance of the evidence that for want of railing or barriers the highway was not sufficiently safe” — clearly referring to reasonable safety and sufficiency for public travel previously mentioned in the instructions — to answer the question accordingly. It is considered, in view of such instructions, that the question complained of was not fatally defective, though as before said, it is not a very good model to follow, even in connection with proper instructions.

It is suggested that the third question practically told the jury that it is the duty of a town to make its highways suitable for public travel for the entire width, contrary to Rhyner v. Menasha, 97 Wis. 523, 73 N. W. 41; Kelley v. Fond du Lac, 31 Wis. 179, and other cases in respect to that matter. It does not seem so. It was left to the jury to say, under all the circumstances, whether the unguarded excavation rendered the highway insufficient. Among those circumstances were the railway track on the cross road, a few feet from the excavation, and the evidence as regards the custom of leaving an engine standing near by on such track and fired up, as testified to by the witnesses. In view of the whole ■situation, it was a fair jury question as to whether the unguarded excavation rendered the highway insufficient within the meaning of the statute and the decisions of this court.

While it is not incumbent on a town to prepare a highway for its whole width so as to be, in general, suitable for public travel in every portion of it; but only a part thereof sufficient in extent for the safety and convenience of travel, and its liability, primarily, is limited to damages in the traveled track,-Hawes v. Fox Lake, 33 Wis. 438; James v. Portage, 48 Wis. 677, 5 N. W. 31; Goeltz v. Ashland, 75 Wis. 642, 44 N. W. 770; Hammacher v. New Berlin, 124 Wis. 249, 102 N. W. 489,—a defect within the limits of the highway need not, necessarily, be within such part to render it insufficient for public use. It is sufficient to so render it if the defect is so connected with the traveled part that the road is not reasonably safe under all the circumstances. Carpenter v. Rolling, 107 Wis. 559, 83 N. W. 953; Hebbe v. Maple Creek, 121 Wis. 668, 99 N. W. 442. However, in absence of special circumstances, a defect so far from the traveled track as. the quarry hole was, might be considered, as a matter of law, as not rendering the highway actionably defective. But there were such special circumstances in this case, proper to^ be considered by the jury. The surface of the road seems to have been substantially smooth up to the brink of the deep-excavation, and the engine was but a short distance away, so that, in case of its startling a horse traveling alongside of such excavation, the animal would naturally swerve suddenly toward it. The jury were instructed to determine the matter in the light of the whole situation.

Error is suggested because the court submitted the fifth question, without one requested, as regards whether the officers of the town had notice of the fact that the engine was left on the highway in time to have had the same removéd before the accident occurred. The jury were very fully instructed on the subject of constructive notice, so the submission of the question requested was not necessary. They were told that if it had been a common practice for weeks or months to leave the engine, as at the time of the accident, that, as a matter of law, rendered the town chargeable with notice of such practice.

Tbe seventh question was so worded as to require appellant, in'order to secure, an answer in its favor on the subject of contributory negligence, to find that respondent was guilty of “contributory negligence or want of ordinary care” which not only contributed to produce, but which “proximately caused the injury.” That question was certainly rather confusing and plainly erroneous. The term “contributory negligence” and the term “want of ordinary care” should not have been used so as to convey the idea that they are distinct. The term “want of ordinary care” only should have been used. The term “contributory negligence” which proximately caused “the injury” involves almost, if not quite, a contradiction. Moreover, if respondent was guilty of any want of ordinary care which proximately contributed to produce his injury, though it was not the proximate cause of it, he could not recover. The question was not aided by the instructions. On the contrary, the infirmities in it were emphasized thereby.

Notwithstanding what has been said as to the seventh question, in view of the finding that the horse was an ordinarily gentle driving horse, that respondent only lost control of it momentarily, and immediately preceding the accident, and the undisputed evidence that the horse shied immediately upon respondent observing the engine and suddenly took a few steps sideways and thus reached the excavation, in spite of respondent’s efforts to prevent it, it does not seem that such question was prejudicial. The case seems to be barren of any evidence of contributory negligence.

The criticisms of the eighth and of the ninth questions do not appear to have any substantial merit. True, unless the loss of control of the horse was merely momentary, so that it did not acquire the status of a runaway horse before it reached the excavation, in one view of the case, that would be material. Schillinger v. Verona, 96 Wis. 456, 71 N. W. 888; Ehleiter v. Milwaukee, 121 Wis. 85, 98 N. W. 934. But the findings and the evidence clearly negative the idea that the horse had acquired sucb status before the accident, within what was said in Ehleiter v. Milwaukee. It merely shied out of the traveled track and after going a few steps, momentarily not submitting to respondent’s efforts to direct it, the brink of the excavation was reached. A horse is not to be considered as uncontrollable in the sense that it has escaped from management by its driver, and become a runaway,- during the brief interval of shying denominated by the term “momentarily not controlled by the driver.” Titus v. Northbridge, 97 Mass. 258. The form of the question on the subject of proximate cause is criticised because it recited the absence of barriers or a railing at the quarry hole. As we remarked in discussing the third question, such recitals merely referred to undisputed matters and therefore were proper.

While no serious complaint seems to be made because the jury found that the unguarded quarry hole was the proximate cause of the accident, it is evident that, if it were not, then the condition which caused the horse to shy was such cause, and for that, according to the verdict, the appellant was responsible. In that view, whether the horse reached the excavation while momentarily shying is immaterial. It is well settled that, if an ordinarily gentle horse is startled by an actionable defect in a highway, and before its driver can, by the exercise of ordinary carq, restrain it, it dashes against some object or into a hole or ditch, thereby causing injury to the driver or his property, the municipality in which such highway is situated is liable therefor, whether such object, hole, or ditch constitutes an actionable defect in the highway or not. Kelley v. Fond du Lac, 31 Wis. 179; Donohue v. Warren, 95 Wis. 367, 70 N. W. 305; Schillinger v. Verona, 96 Wis. 456, 71 N. W. 888; Seaver v. Union, 113 Wis. 322, 334, 89 N. W. 163. The verdict of the jury made a clear case for respondent under that rule, in connection with the decision by the court that the engine, conditioned as the evidence pretty clearly showed, was an object naturally- calculated to frighten horses of ordinary gentleness, which, as matter of fact, it seems was so clear that there was no prejudicial error in not submitting the matter to the jury.

It follows that, in any view we can take of the case, the judgment appealed from is right.

By the Gourt. — The judgment is affirmed.