118 Wis. 564 | Wis. | 1903
The first contention made by the appellant is that the answers to the second and 'third questions of the special verdict are unsupported by the evidence. We do not deem it necessary, or even profitable, to review the evidence upon these questions in this opinion. We have carefully examined it, and content ourselves with the general statement that in our opinion the evidence was entirely sufficient to support the findings of the jury.
Passing to the legal questions raised, we find the claim made that the court erred in his charge to the jury in submitting the third question. The court first instructed the jury, on this question, that the duty of highway officials to discover defects in a bridge is greater than the duty resting upon the traveler. This proposition is not complained of, but complaint is made because the court then proceeded as follows:
“Can you say, as jurors, that the care which might have been sufficient, of such officials, in discovering the sufficiency*568 of a bridge before the use of steam engines in tbis locality, would be ordinary care in discovering tbe sufficiency of a bridge which, the law now requires shall be reasonably safe for the passage of an engine.of the weight of the one here in question, when being moved or propelled in the exercise of ordinary care upon the part of the person in charge of such engine ?”
We are unable to perceive any error in this instruction. The question as to what constitutes ordinary care is nearly always a relative question, depending on the surrounding circumstances and conditions. It seems to us very evident that acts which would fulfill every reasonable requirement of ordinary care in the inspection of a bridge over which-nothing heavier than an ordinary loaded wagon ever passed might not constitute ordinary care when it was known that traction engines many tons in weight frequently passed over them under the sanction of express law. This is the idea contained in the instruction, and we find no error in it.
It is next claimed that the evidence shoWs that the plaintiff and Ritske weré guilty of contributory negligence, as matter of law, because they failed to span the bridge with planks, as required by ch. 197, Laws of 1899. It was held upon the former appeal in this case (111 Wis. 113, 86 N. W. 566) that this law, which requires the bridge to be spanned “with hardwood planks at least two inches thick and twelve inches wide, so that the engine shall rest thereon in crossing,” was sufficiently complied with if the tracks on which the wheels of the engine run are of the required thickness and width, though composed of narrower planks laid side by side; also, that failure to comply with the requirement is not a defense to the town, unless there is some direct causal relation between the failure and the accident. These propositions are not now combated; but it is claimed that the evidence on the present trial affirmatively shows that the bridge was not spanned with planks, even in accordance with the spirit of
A number of jueces of decayed pine timber were offered in-evidence on the trial as having been a part of the bridge, and' were received against objection, and this ruling is now urged as error. It appeared by the evidence that after the bridge broke down, in August, 1899, the wreckage was piled in a mill yard near by, where it remained exposed to the weather until June, 1900, when the- plaintiff’s brother saAved off the-pieces in question, and they were introduced in evidence on-.
“Tbe care required to be used by a traveler in passing along a highway is measured by tbe perils obviously to be encountered. So, in this case, knowledge of tbe possible insecurity of this bridge, and that tbe load he was purposing to put upon it was unusual in weight, will be imputed to tbe plaintiff. . Travelers are bound to take notice of tbe fact, as a matter of common knowledge, that wooden bridges spanning streams will break down in case sufficient weight is put upon them. Tbe plaintiff could not assume, and bad no right under tbe law to assume, that this bridge would safely bear up a traction engine weighing over 9,000 pounds, because it had for many years safely stood tbe test of ordinary wagon travel over it. Tbe plaintiff in this ease must have known, and tbe law will impute such knowledge to him, that the weight which be was proposing to put upon tbe bridge in question was over two or three times greater than an ordinary loaded wagon, and that tbe strain upon tbe bridge timbers would be correspondingly greater; that there was greater danger in crossing it with this engine than there would be with a loaded wagon; and so be was bound to use a greater degree of care in crossing, or attempting to cross, than he would be bound to use in case be were attempting to cross with a loaded wagon; and tbe degree of care which be was bound to use must be determined by you under all of tbe facts and testimony in the case.”
Tbe sum and substance of these proposed instructions is that tbe care to be demanded of tbe plaintiff must correspond to the known risk, and that, in crossing an ordinary country bridge with a traction engine, be must exercise a greater degree of care than be would be required to exercise if be were crossing witb a loaded wagon of ordinary weight. This is doubtless correct, but we think it was fully covered by tbe following instruction which tbe court gave tbe jury:
“Tbe court has further said, in reference to tbe crossing witb this engine, that it was tbe duty of both these men in*573 charge of this engine to exercise ordinary care, and ordinary care in this case should be such as should be suitable to or commensurate with the hazard or risk which would naturally attend the circumstances of crossing this bridge; that is, it would be fair for you to say, as jurors, in finding the fact in regard to this, that they should exercise a higher degree of care and diligence, in order to constitute ordinary care, than they would be required to exercise if going over with an ordinary load of stone or an ordinary load of produce.”
It is claimed that the verdict is excessive. We do not think so. The plaintiff was a vigorous and strong man. He was pinned beneath the wheels of the engine when it went down, and only rescued by raising the engine with jackscrews. His bodily injuries were severe, and one leg is crippled, so that he is still obliged to walk with a crutch or cane. There is expert testimony tending to prove that the injury is permanent. Hnder these circumstances, we cannot say that the sum awarded by the jury is too great.
By the Gourt. — Judgment affirmed.