Oliver v. Town of La Valle, 36 Wis. 592

Oliver v. Town of La Valle

36 Wis. 592 | Wis. | 1875

Cole, J.

There is no question in this case as to the insufficiency of the bridge where the accident Happened. The testimony is conclusive that it was out of repair, and constituted a defect in the highway. In determining the liability of the town, therefore, but two questions are raised by the exceptions: 1st. Was the plaintiff Mrs. Oliver guilty of contributory negligence? 2d. Were the damages too remote, or were they the natural and direct consequences of the failure of the town to keep the bridge in proper repair ?

On the motion for a nonsuit,^the defendant claimed that the evidence clearly showed that whatever injuries Mrs.'Oliver sustained were occasioned, not by reason of the want of repair of the bridge, but by her own act in going up the hill in the 'manner detailed-by her in her testimony; and that as her own negligence and imprudence contributed to the injury com-plaimed of, there could be no recovery. The court, as we think, very properly refused' to withdraw the ease from the *596jury. The court, on submitting the cauée, was requested to charge, amongst other things, first, that if the injuries complained of were caused by the exertions of Mrs. Oliver in going for help, or, third, if such exertions contributed to produce such injuries, there could be no-recovery ; fifth, that if Mrs. Oliver was pregnant at the, time of the-accident, but was not aware of her condition, yet if her exertion in going.for help contributed to produce the miscarriage, her ignorance of her condition did not render the town any more -liable on that account. The court refused to so instruct, but did direct the jury that if they found from the evidence that the negligence of Mrs. Oliver contributed to the injury which she received, the town was not liable; or if they found that her negligence or imprudence had the effect to increase the injuries received by her, then, if the town was liable at all, it was not liable for such enhanced damages ; leaving the question to the jury whether under all the circumstances Mrs. Oliver did act prudently and cautiously in doing what it appeared she did do.

It seems to us the court fairly submitted the question of Mrs. Oliver’s want of care and prudence to the jury, whose province it was to determine it. Surely the question whether she was negligent in doing what she did, was not a question of law. She was bound to exercise that care and diligence which persons of ordinary prudence would use under similar circumstances, taking into consideration - her sex and condition ; and so the court directed the jury. It would have been improper for the court to say that if the evidence satisfied the jury that'her exertions in going or running for aid to extricate the horse "which had broken through the defective bridge, caused or contributed to produce the miscarriage, then the law imputed negligence on her part. The essence of the requests refused is,, that there-could be no recovery if the injury complained'of were in anyway caused by the exertions of Mrs. Oliver in . doing what she did. This was assuming that these exertions constituted negligence. We should be very *597unwilling to say, as a matter of law, that in making these exertions her conduct was imprudent; that she did not act as a woman of ordinary care and diligence would have acted under similar circumstances. It might be' quite consistent with a proper degree of care and prudence, for her to make these exertions to obtain help as requested by her brother. .At all events, they will not warrant the charge of negligence as a matter of law, even if they did contribute to produce the injury. It appears that she and her brother were riding in a lumber wagon on the highway, and, upon driving on the bridge in a careful manner, the horses broke through with their hind feet. One horse was got out by them, but they were unable to extricate the other, which remained with his hind legs through the bridge. Her brother requested her to go and procure aid as quick as she could ; and whatever exertions she made were put forth in running or going for help to extricate the horse,. or in her- endeavors to assist him. Whether there was anything rash or imprudent in her conduct, or whether she acted with due care and judgment under the circumstances, were questions for the Pr.y.

The second question relates to the remoteness of damages. It is insisted on the part of the town, that the injury sustained by Mrs. Oliver is too remote to be attributed to the defect in the bridge.

It was alleged in the complaint, that by reason of the dangerous condition of the bridge and of the horses breaking through it as described, Mrs. Oliver was severely and seriously injured in body and mind; that she was greatly frightened, and being delicate and nervous, and about four months advanced in pregnancy, a miscarriage was produced; and that she suffered for a long time great bodily pain, and was unable to attend to her domestic affairs. This miscarriage, and the sickness resulting therefrom, it is claimed, were not the natural and proximate consequence of the insufficiency in the bridge. It seems to us impossible to say, as a proposition of *598law, that the failure of the town to keep the bridge in repair was not the direct and proximate cause of the injury. Had the bridge been in repair it is safe to assume the accident would not have happened. When the horses broke through the bridge, Mrs. Oliver was greatly frightened, as it was perfectly natural she should be. She immediately jumped from the wagon, and endeavored to assist her brother in extricating the horses, and ran for help; conduct and actions on her part probably justified by the condition in which both persons and animals were in consequence of the failure of the town to per form its duty. What particular act or thing produced the miscarriage, no one was able to tell. The medical witnesses say that sudden fright, violent emotions, jumping from the wagon, would all be exciting causes of miscarriage. Now it is manifest that the fright, the violent emotion, the jumping from the wagon, all resulted directly and necessarily from the accident. But no witness was able to state, and the court could not determine, whether the miscarriage was really produced by one or all of these causes operating, or whether they concurred with Mrs. Oliver's subsequent exertions to produce it. But the acts of her body and the condition of her mind were necessary' results of the accident; and the accident was caused by the insufficiency of the bridge, for which the town must be held responsible. The evidence does not show that any new cause or force intervened to produce the injury, within the meaning of the authorities. The damages were such as might reasonably be expected to follow an accident happening to a woman in Mrs. Oliver's condition. And it seems to us there is no ground for saying that the damages were the remote and not the proximate result of the negligence of the town. It is very certain the injury would not have been sustained but for the defect in the bridge.

For these reasons the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.