Lauson v. Town of Fond Du Lac

• Citation: 123 N.W. 629,141 Wis. 57
• Parties: LAUSON v. TOWN OF FOND DU LAC.
• Decision Date: 07 December 1909
• Court: United States State Supreme Court of Wisconsin

141 Wis. 57

123 N.W. 629

LAUSON

v.TOWN OF FOND DU LAC.

Supreme Court of Wisconsin.

Dec. 7, 1909.

Appeal from Circuit Court, Fond du Lac County; E. Ray Stevens, Judge.

Action by Olga Lauson against the Town of Fond du Lac. Judgment for plaintiff. Defendant appeals. Reversed and remanded, with directions.

Action to recover damages for injuries alleged to have been sustained by reason of a defect in a highway. The plaintiff was riding in an automobile driven by one Robert Hippe, on the main highway between the cities of Waupun and Fond du Lac. A culvert in the road was being replaced, leaving an opening therein about 8 feet in width and 9 feet in depth. Barriers were erected on either side of the opening, such barriers consisting of a single 16-foot fence board extending across the highway and nailed to posts on either side. There was some dispute in the testimony as to the distance the barriers were placed from the opening; the testimony of the plaintiff tending to show that it was but 24 feet distant, while that of the defendant tended to show that it was 43 feet. The accident occurred about 10 o'clock on a dark rainy night. The automobile ran through the barrier and into the opening, injuring the plaintiff. It was running at a speed not to exceed eight miles an hour. It carried but one headlight, which was tilted down somewhat so as to throw the light into the wheel tracks. From the testimony it appears that the driver could not see objects more than 10 or 12 feet ahead of him, and that at the speed he was proceeding he could not bring the machine to a standstill within less than 15 or 20 feet. The barriers were about 4 feet above the surface of the road. The alleged negligence of the town consisted in its failure to place a light around the opening, or to afford any protection to travelers, except such as might be afforded by the barriers that were erected. From a verdict and judgment in favor of the plaintiff, defendant brings this appeal.Maurice McKenna, for appellant.

J. E. McMullen, for respondent.

BARNES, J. (after stating the facts as above).

The defendant seeks to defeat recovery on the ground that the driver of the automobile was guilty of contributory negligence, and that the court should have so decided as a matter of law. The automobile in question was a private conveyance, and if its driver failed to exercise ordinary care, and such failure contributed to produce the injury complained of, the plaintiff cannot recover. Ritger v. Milwaukee, 99 Wis. 190, 74 N. W. 815;Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558;Otis v. Town of Janesville, 47 Wis. 422, 2 N. W. 783;Olson v. Town of Luck, 103 Wis. 33, 79 N. W. 29;Lightfoot v. Winnebago Traction Co., 123 Wis. 479, 102 N. W. 30. The question for this court to solve is whether the driver of an automobile, who, on a dark rainy night, is traveling over a straight stretch of strange country road, is exercising ordinary care if he drives his machine at such a rate of speed that he is unable to stop within a distance that is within the clear range of his vision. Stated in another way, if he can see objects but 10 feet ahead, while he cannot stop his car in less than 20 feet, is he using ordinary care? If not, and injury results from his negligent act, neither he nor his passengers, if the conveyance be a private one, can recover damages for such injury. Self-propelling machines of great weight and high power have come into general use in the past few years. They are rightfully accorded the same privileges in the use of our highways that are accorded to other vehicles. When driven at a reckless rate of speed, they are a source of constant menace to their occupants, and to the traveling public, which has not and cannot abdicate its right to use our roads. What may be a moderate rate of speed under some circumstances may be a reckless rate under other conditions.

The driver of every automobile in a city knows that streets are frequently torn up for the purpose of repairing or rebuilding them, and for the purpose of laying water and sewer pipes, and for laying gas mains, conduits for carrying electric wires, and such like, and that repairs on such pipes, mains, and conduits must be frequently made, as well as connections with private consumers. He further knows that children, pedestrians, bicycle and motorcycle riders, street cars, and passengers carried by horse power are to be found on the streets in great numbers, and frequently huddled closely together. The driver on a country road knows that bridges and culverts must be rebuilt; that highways must be repaired; that washouts...