118 Wis. 573 | Wis. | 1904
The trial court directed a verdict in favor of the defendant on the sole ground that there was no evidence tending to prove that the alleged defect was within the public highway. To determine the correctness of this ruling, it is important to know the character of the defect and its location in respect to what was then the traveled portion of the highway, or the portion of the highway which was in a condition to invite travel, under the circumstances. It is undisputed that at the place in question the highway ran in a northerly and southerly direction, and was four or five rods wide, and fenced on both sides. It was crossed by Two-Mile creek, which was from two to four feet wide, and entered the highway from the east, flowing thence southerly, thence westerly, thence northwesterly, and thence in a westerly direction, in the form of a curve, to and through an embankment or dike leading across the valley. The creek valley was sandy, with much surface, flat, and from six to ten rods wide from north to south, and from five to six feet lower than the general level outside of it. Tor many years immediately before the time in question, the highway across the valley ran on the embankment or dike mentioned, the top of which was some five or six feet higher than the bottom of the valley. This dike was from fourteen to twenty feet wide at the top, and from twenty to twenty-four feet wide at the bottom, and as it came from the south, curved to the west until it reached the limit of the highway, and at that point there was a bridge sixteen feet wide and from sixteen to eighteen feet long, cross
There is evidence tending to prove that the road commissioner for the previous year was at the locus in quo a day or two after- the bridge went out, and after the water had gone down a depth of three feet on the general level, and with a pole sixteen to twenty feet in length probed the hole from the south end of the dike, at the break therein, and found it to be from thirteen to fourteen feet in depth; that teams were crossing at the time, and he reported these conditions to the town board; that he was there again on the morning of' July 7, 1897, the day of the accident, and probed the hole-again, hut at no time sought to find how far the hole extended toward the east; that the valley had water over its surface until July 5, 1897, when there appeared a tongue or narrow strip of land, extending from the north bank of the valley to>
The plaintiff’s intestate was a little more than seventeen years- of age at the time of his death. He resided with his parents, eight and one-half miles northerly from the place of
Such is a general outline of the evidence upon which the court directed a verdict in favor of the defendant. In doing so, the learned trial judge laid particular stress upon the fact that during all the time after the fences which prevented travel were removed, down to the time of the accident, there was a passageway (at the place in question) along which persons could pass with reasonable safety, and that there were no facts which would justify a finding that the town authorities ought to have foreseen that any traveler, in the exercise of ordinary care, was liable to wander up to the margin of the bole, several feet outside of any track or any way thereto
2. The trial court very properly held that the question whether the deceased was guilty of contributory negligence was peculiarly one for the jury. It is claimed on the part of the defendant that it appears from the evidence that the deceased followed the creek, and drove with his near wheel in the creek and his off wheel on the shore, directly northwest, and headlong into the deep hole. The plaintiff contends that the evidence shows that he drove upon the dry strip of land between the poles mentioned and the deep hole, and that the cart slid off the overhanging sod and threw the pony into the deep hole, and that that accounts for the situation in which the cart, the pony, the boy, and the umbrella were found in the deep hole. Such questions and others were properly for the jury.
3. It is claimed that the plaintiff’s right of action was taken away by ch. 305, Laws of 1899, which amended sec. 1339, Stats. 1898, by providing “that no action shall be maintained ... by a parent on account of injuries received by a minor child.” That chapter provides that it should “take effect and be in force-from and after its passage and publication,” which was nearly two years after the right of action, if any, accrued. Such statute is by its terms pros
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.