Thayer v. Jarvis

44 Wis. 388 | Wis. | 1878

LyoN, J".

The motion for a nonsuit was put upon the ground that there was no proof that the place where the plaintiff’s horses were injured was a public highway; but the record fails to disclose the ground upon which the court granted the motion. Were this otherwise, and had the motion been granted for insufficient reasons, still, if the record discloses any sufficient ground for it, the nonsuit will not be disturbed.

One of the issues in the case is, whether the plaintiff’s horses, when injured, were lawfully at the place of injury. It is alleged in the complaint that they were lawfully there, and this allegation is denied in the answer. True, the grounds of the right claimed are stated in the complaint, and the right is derived from certain alleged acts and agreements of the owners and occupants of the block; but the answer directly tenders the broad, unqualified issue of the right of the plaintiff to drive his team through the open space in which the injury occurred. It seems to us that under these pleadings it was competent for the plaintiff to show that his horses were lawfully there, and that, to this end, he might show that the place was a passageway for teams doing the work of Webster Brothers, made so either by gi’ant, prescription or license.

The plaintiff did not attempt to show any right of way there by grant or prescription, but he-did prove a state of facts from which the jury might well have found that he had a license from the owners and lessees of the block, including the defendants, to drive there when doing the work of Webster Brothers. Such a license, until revoked, is as effectual to sustain this action as would be proof that the alleys or open spaces are public or private ways by grant or prescription, over which the plaintiff had lawful right to drive his team.

But if there is a variance between the allegations of the complaint and the proofs, in respect to such right of passage at the point of injury, it is immaterial. The evidence of the long continued and uninterrupted user, by the occupants of the block, of the open space as a passageway for teams, was received without objection. In view of the issue they tendered, the defendants could not have been misled or prejudiced by it. At any rate, they offered no proof that they were misled by it; and, in the absence of such proof, the variance (if there was a variance) is immaterial, and should be disregarded, or the complaint amended to correspond with the proofs. E. S. 1858, ch. 125, secs. 33 and 34. Certainly there is no ground here for saying that the cause of action in jts entire scope and meaning is unproved, for the fact is clearly otherwise.

The question of the negligence of the respective parties was for the jury. Upon the evidence before us, we cannot say, as matter of law, either that the injury complained of was not caused by the negligence of the defendants, or that the plaintiff’s teamster was guilty of negligence which contributed thereto.

We find nothing in the record which is necessarily fatal to the plaintiff’s right to recover in the action; and hence we think the nonsuit should not have been ordered.

By the Court.— Judgment reversed, and cause remanded for a new trial.