Vass v. Town of Waukesha

| Wis. | May 15, 1895

Winslow, J.

Sec. 1249, S. & B. Ann. Stats., provides that when any part of the pubhc highway is blocked by snowdrifts, so as to be impassable, the overseer of highways shall, on one day’s notice, call out the taxpayers of the district and put the same in passable order. Some discussion was had between counsel and the trial judge as to the exact meaning of this statute, before any testimony was taken in the ease, and the trial judge stated that in his opinion the statute contemplated that the overseer is required to open the traveled track of the highway and make it reasonably safe for travel. Counsel for defendant now seek to assign error upon this remark, but no exception was taken to it, nor was any question then before the court, and it is plain that, under these circumstances, whether the view of the law so announced was right or wrong, there is no error.

The following instruction was asked by the defendant, and refused, except so far as given in the general charge: “ If the town officers deemed it impracticable to keep the snow out of that portion of the highway that had been traveled, but instead saw fit to open a track on either side of the usual traveled track, I charge you that they had a right to do so, and the only thing that is required of the defendant town is to keep the public highways of the town in such condition that they are reasonably safe for the public to travel on; and the town is required in the law to keep the public highways clear from snow and ice, so that they are safe, or reasonably so, for travel, and a track anywhere between the fences of the highway that is reasonably safe to travel is a sufficient compliance on the part of the town to relieve- it from liability.” The trial judge charged the jury upon the subject generally as follows: “Was the highway defective at the point where the accident occurred? The law in this state requires that towns and municipalities shall keep their streets and highways in a reasonably safe condition for the passage of travelers by night and by day, summer and winter. The law does not undertake to establish what is a reasonably safe condition of the highway. That depends oftentimes upon a variety of circumstances, but it is left for the jury to say, to apply their knowledge and experience in such matters, and to say whether a given highway is in a reasonably safe condition. The town is not an insurer. The law does not require nor does the town undertake to make a highway perfectly safe, so that no accident can happen; but they are required and it is their duty to make them, in view of the circumstances, the character of the highway, and the season of the year, to make them in a reasonably safe condition. And Avhat is reasonably safe is a question for the jury, under all the circumstances as shown by the evidence. You can see at once that in what might be called a by-road, where there was no great amount of travel, or in a new country where there was a great deal of timber, they could not put the road — they would not be required to put the road — in as good condition as they would in an old, settled country and a road that was very much used and traveled. So you are to take this evidence, all the evidence bearing upon the case, upon this question, all the surrounding circumstances as shown by the evidence, and say, Was the road, at the point where the accident happened, in a reasonably safe condition? It doesn’t make any difference in what condition the road was, except that time, the very point where the accident occurred, where they turned upon the side track onto the traveled track. It doesn’t make any difference how many people passed there and have been tipped over, nor does it make any difference how many people have passed there in safety. The whole question to be answered is, Was .the road itself in a reasonably safe condition for the passage of teams? And below that question yon will answer 4 Yes ’ or 4 No,’ as you may find the fact to be.”

Ve think this general charge covers the subject quite as fully as was necessary. It is certainly sufficiently favorable to the town. Probably it would have been proper to have charged that the town officers had a right to open a track on the side of the traveled track if they deemed it impracticable to keep the snow out of the traveled track; but the charge as given in effect so holds, because it virtually says to the jury that if the road was in a reasonably safe condition it was not defective. This means that if the temporary track was reasonably safe then there was no defect, and this covers the whole point.

Some criticism is made of the definition of negligence which the court gave to the jury. The court charged that it means want of that care aud caution which a person of ordinary intelligence and judgment would use under like circumstances ; also, that the care required is the care ordinarily exercised by persons of ordinary judgment and prudence. "We do not see that fault can be found with these definitions.

There are no other questions which require to be noticed in detail. The case seems to have been fairly tried.

By the Court.— Judgment affirmed.