Phillips v. Town of Willow

• Decision Date: 01 November 1887
• Citation: 34 N.W. 731,70 Wis. 6
• Parties: PHILLIPS AND WIFE v. TOWN OF WILLOW.
• Court: Wisconsin Supreme Court

70 Wis. 6

34 N.W. 731

PHILLIPS AND WIFE

v.TOWN OF WILLOW.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Richland county.

Black & Burnham, for respondents.

Miner & Berryman and Pinney & Sanborn, for appellant.

COLE, C. J.

This is an action to recover damages for injuries sustained by the female plaintiff while passing along a public highway in the defendant town. She and her husband were riding in a cutter, which was overturned by the runner striking or going over a stone. It was claimed that this stone was in, or very near the traveled track of the highway, and constituted a defect or dangerous obstruction thereof. On the part of the plaintiffs, witnesses were allowed to testify, against the objection of the defendant, that, near the time the accident occurred, they drove along the highway,--in one case with a wagon, and struck the stone in question, and came near tipping over; in the other case, the witness was in a cutter, and ran against the stone, and was tipped over. It is claimed by the defendant's counsel that this testimony as to what happened to others in driving against the alleged defect was inadmissible, and was calculated to prejudice the town, and for this reason a new trial should be awarded. We think this position is sound and must prevail. Upon principle, and by the better rule of law, we consider the evidence inadmissible.

The question is not entirely new in this court. In Bloor v. Town of Delafield, 34 N. W Rep. 117, a kindred question was presented and considered. That was also an action for injuries caused to the plaintiff by being thrown from his buggy, his horse being frightened by a mortar box in the highway, while he was driving past it in the evening. Testimony was offered on the part of the town that many horses were driven past the mortar box the day it was within the limits of the highway without being frightened. This testimony was objected to and excluded. This court approved the ruling of the trial court, and held the testimony inadmissible. Mr. Justice LYON, in the opinion, says to hold such testimony admissible would be to open the door to numerous and perplexing side issues, which is always to be avoided. Issues would be made, not raised by the pleadings, and which presumably neither party would be prepared to try. It must be admitted that the cases are not in accord upon this question. In some it is held that the evidence of other accidents, or of the effect on carriages driven by other persons than the plaintiffover the same road, is competent, because it has a tendency to show its fitness or unfitness for public travel, (Kent v. Town of Lincoln, 32 Vt. 591;Quinlan v. City of Utica, 11 Hun, 217;) or tends to prove that the object was or was not naturally calculated to frighten horses, (Darling v. Westmoreland, 52 N. H. 401;House v. Metcalf, 27 Conn. 632;) or to show knowledge on the part of the city that a bridge was not properly lighted so as to be safe to persons crossing it, ( City of Chicago v. Powers, Adm'r, 42 Ill. 169;) or to show the result of experience or experimental knowledge of the possibility of the negligent act relied on as causing the injury, ( Piggot v. Railway Co., 3 C. B. 229, and Morse v. Railway, 16 N. W. Rep. 358.)

Other courts have...