Trzebiatowski v. Town of Pike Lake

| Wis. | Dec 2, 1919

SiebeckeR, J.

The trial court’s statement of the case in its decision of the motions made by the parties after verdict accurately' and succinctly describes the locus and the surrounding conditions involved in the questions raised on this appeal:

“The defect in the road which rendered it dangerous to travelers consisted of a wire extending diagonally across the road at its intersection with the town line between the towns of Pike Lake and Ringle, starting from a pole in the town of Pike Lake located seventy-four feet south from the line and at the height of sixteen feet and extending to a pole at or near the surface of the earth ninety-two feet north of the town line. It thus appears that at the town line the wire must have been approximately eight feet above the surface, if we allow for such sagging of the wire as must have existed in the 164-feet stretch between points of support, This is subject to variation on account of relative elevation of the grade of the road and the points at which the poles were located.”

The statutes require the wire at this crossing to be twenty-four feet above the surface. Sec. 1329a, Stats.

It appears that the plaintiff was driving southward in a canopy top buggy in the town of Ringle, approaching the town line; that the wire caught near the top of the canopy, making a noise and causing the horses to start suddenly to go faster; the pressure of the buggy top against the wire broke it and then the buggy and wire became entangled and the buggy tipped over, causing the, injuries complained of. The defect in the road caused by the wire, as found by the jury, existed at the town line and hence it was common to both towns. Such a defect, as declared by this court on the former appeal of this case (Trebowoski v. Ringle, 165 Wis. 637, 163 N. W. 165), “. . . in a proper sense, may be said to be within either or both [towns] and so that the words of the statute [sec. 1339] 'in any town’ apply to such point as regards either municipality. It follows that . . . both are in duty bound to maintain the highway at such point in a reasonably safe condition for public’travel. Failure to do so is a joint and several liability, in case of damage to any one in his person or property happening thereby.” This decision clearly and properly determines that such a defect is common to the road of both towns. The evidence fully sustains the finding that the default of both towns produced this defect, which, “in a proper sense, may be said to be within either or both.”

The accident to plaintiff is clearly attributable to the defect common to both towns. ■ The fact that the buggy top first came in contact with the defect in one town does not alter the fact that the default of each town concurred as the proximate cause of the result. The result of the situation is that the failure of duty of both towns co-operated and concurred to produce the defect which proximately caused the plaintiff’s injuries. It is considered that the trial' court properly held that the defendant towns are jointly liable for the damages recovered by the plaintiff.

By the Court. — The judgment is affirmed.