54 Wis. 528 | Wis. | 1882
It is urged that the bridge or road, at the time and place of .the injury, was a county highway, adopted as such, and that the county of Clark, and not the defendant, was bound to keep it in repair.
The defendant also offered to show by such records that November 15, 1879, the board levied a county road tax, and directed $300 to be expended in the town of Thorp, and that November 13, 1880, the board levied a county road tax, and directed $600 to be expended in the town of Thorp, and that commissioners were appointed to apply such appropriations; which offers were rejected. Did these offers tend to exonerate the town from liability, and fix the same upon the county? Undoubtedly the county boards of supervisors have authority “ to lay out highways ” in the manner and under the circumstances stated in sections 1300-7, R. S. So the county board may “adopt any main traveled highways, or parts of such
It has often been held that no action lies at common law against a town for damages sustained through the defect of the highways in such town. Mower v. Leicester, 9 Mass., 247; Sawyer v. Northfield, 7 Cush., 494; Holman v. Townsend, 13 Met., 297; Barry v. Lowell, 8 Allen, 127; Oliver v. Worcester, 102 Mass., 499; Town of Waltham v. Kemper, 55 Ill., 346; Bussell v. Steuben, 57 Ill., 35; Eastman v. Meredith, 36 N. H., 284. On the same theory, it has often been held t aat a county is not liable at common law for a defect in a public highway of the county. Huffman v. San Joaquin Co., 21 Cal., 246; Sherbourne v. Yuba Co., 21 Cal., 113; Crowell v. Sonoma Co., 25 Cal., 313; Freeholders of Sussex Co. v. Strader, 18 N. J. L., 108; Cooley v. The C. F. of Essex, 27 N. J. L., 415; Commissioners v. Mighels, 7 Ohio St., 109; Scales v. O. of Chattahoochee Co., 41 Ga., 225; Brabham v. Supervisors, 54 Miss., 363; Woods v. Colfax, 15 West. Jur., 165, and note.
The statute requires that highways laid out by county boards shall be opened and repaired in the respective towns in the same manner as other highways. Section 1307, R. S. The statute also requires that all state roads shall be opened and worked as other highways by the several towns in which the same are or may be located. Section 1316, R. S.; Jensen v. Supr's Polk Co., 47 Wis. 298. The statute making any (own, city or village liable for any damage happening by reason of the insufficiency or want of repairs of any bridge, etc., in such town, city or village, docs not limit such liability to town roads, nor to any particular class of roads, except that it pro
The simple question therefore is, whether the rejected evidence shows that the highway in question had been “adopted ” by the county board as a county road. Such adoption, under the statute, seems not only to be confined to “ traveled highways or parts of such highways,” but to “ main ” traveled highways. It would seem t<5 have no reference to such roads as are laid out and established by the county board in the first instance. It would seem that the rejected evidence did not tend to show that the county board had adopted the road in question as a county road, much less that it was a “main traveled highway.” On the contrary, the petition, by its terms, giving it the most liberal construction, is nothing but an “ application ” to “ lay out ” and to “ establish ” a county road. Hark v. Gladwell, 49 Wis., 172. Whether it was ever in fact laid out and established as a county road, or as a state road, does not appear, nor was it material, since in neither event would the town be relieved of its statutory liability. So far from the road being a “ main traveled road,” subject to adoption by the county, the defendant gave evidence tending to show that “ this road was merely a trail cut through the
The defendant examined a medical witness, and, after proving by him that certain medical books shown him were standard works in his profession, offered to read extracts from them to the jury as evidence; but the offer was rejected, and the ruling is assigned as error.
In Luning v. State, 2 Pin., 215, it was held to be discretionary with the trial judge whether or not counsel shall be allowed in his argument to read to the jury medical or scientific works. See Wade v. De Witt, 20 Tex., 400; Legg v. Drake, 1 Ohio St., 286.
In Ripon v. Bittel, 30 Wis., 619, the court felt bound, under the peculiar condition of the record, to assume, in order to sustain the judgment, that the medical books had been admitted for the purpose of impeaching the evidence of a medical expert, who had given certain testimony as to their contents. To the same effect is Conn. Mut. Life Ins. Co. v. Ellis, 89 Ill., 516. The inference from the opinion is, that they would not have been admissible as evidence for any other purpose. The precise question here presented is, whether a party can give in evidence extracts from standard medical works referred to by his own expert witness, for the purpose of corroborating such expert, and of increasing the weight to be given to his testimony.
In State v. Hoyt, 46 Conn., 337, the trial court refused to allow such extracts to be read by counsel as a part of his argu
In Ashworth v. Kittridge, 12 Cush., 193, it was held -that “medical books, even of received authority, are not competent evidence, if objected to by the adverse party.” The reason given, in the terse opinion of Chief Justice Shaw, is that the written statements contained in such extracts are “wanting the sanction of an oath,” and are “made by one not present, and not liable to cross examination.” See Com. v. Wilson, 1 Gray, 338.
In Com. v. Sturtivant, 117 Mass., 123, it was held that “books on medical jurisprudence cannot be read by a witness to the jury, although the witness is an expert, and concurs in the views therein expressed.” 'The only difference between that case and this is, that here the counsel proposed to read the extracts, instead of the witness. These cases are in harmony with our own judgment, as well as with the former decisions of this court on the subject. See discussions in 21 Alb. Law J., 266, 281; Wharton on Ev., §§ 665-6; 1 Greenl., § 440, and note.
Among other things the court charged the jury: “ It is also alleged that the bridge was insufficient by reason of the fact that ice had accumulated upon it, which rendered it unsafe and dangerous. The fact alone that there may have been ice upon the bridge, which made it unsafe and dangerous, is not negligence. If the highway and bridge, at and near that point, was properly constructed and reasonably sufficient and safe before the ice came upon it, the town is not liable, unless it is negligent in restoring the highway to a reasonably sufficient and safe condition; [but it is incumbent upon the town to restore
The court was then asked to give the following instruction, which was refused: “The mere slippery condition of the highway and bridge arising from the ordinary action of the elements (as ice and snow) is not such a defect as would render the town liable; and if the jury should find in the case, under all the evidence, that the injuries of the plaintiff were occasioned solely by the highway and bridge being in such slippery condition, then the jury must find for the defendant in this case, even though they should also find that the plaintiff was in the exercise of ordinary care and prudence.”
In passing upon the alleged errors in this portion of the charge, and in the refusal of this instruction, we are to remember that the bridge, off from which the plaintiff’s wagon slid and turned over, was eighteen to twenty feet long, and only twelve feet wide, and that the surface of the bridge sloped to the south, so that the surface of its southern side was from four to twelve inches lower than the surface at the northern side. The bridge was about two feet out of line with the road at each end, and the ice on the surface of the bridge was much thicker and rougher on the northern side than on the southern side.
In charging the jury, the court was bound to keep in view these admitted facts and the evidence in the case. The jury
The plaintiff was allowed, without objection, to give this testimony : “ At the time of the accident I had a wife and two children ; one is three years old, and the other is one year old. I have no other business besides carpentering and labor. I have no trade of any kind. Q. Was your family entirely dependent on you for support ? A. Yes, sir.” After this' evidence was given, the defendant objected, and the judge remarked that he thought the objection came pretty late, but that he did not think the “ question ” relevant. The defend
Error is assigned because a witness was permitted to state what the chairman of the town said after the injury, indicating that he had knowledge of the condition of the bridge before the injury. But the chairman of the town had himself testified that he had “ passed over the bridge the Sunday before the accident.” The fact of notice having thus been admitted, the testimony complained of was entirely immaterial, and could not have affected the verdict, even if its admission l ad been error. For such immaterial error a judgment will not be reversed. Hazleton v. Union Bank, 32 Wis., 36; Davis v. Town of Fulton, 52 Wis., 657.
We cannot say that the damages are excessive, and counsel really do not ask a reversal on that ground. Nor can we say, as a matter of law, that the plaintiff was guilty of contributory negligence. The case is, in some respects, similar to Kenworthy v. Ironton, 41 Wis., 647, in which the verdict for the plaintiff was sustained. The instruction requested by the defendant, which we have not referred to, was, in our opinion, sufficiently covered by the general charge.
By the Court,— The judgment of the circuit court is affirmed.