Mellor v. Town of Utica

Citation4 N.W. 655,48 Wis. 457
PartiesMELLOR, by Guardian ad litem, v. THE TOWN OF UTICA
Decision Date24 February 1880
CourtUnited States State Supreme Court of Wisconsin

Argued February 3, 1880

APPEAL from the Circuit Court for Crawford County.

Plaintiff appealed from a judgment in defendant's favor. The case is stated in the opinion.

Reversed and cause remanded for a new trial.

For the appellant, there was a brief by J. T. & Geo. Mills, and oral argument by J. T. Mills.

For the respondent, there was a brief by Thomas & Fuller, and oral argument by Mr. Thomas.

DAVID TAYLOR, J.

OPINION

TAYLOR, J.

This action was brought by the plaintiff and appellant to recover damages for injuries received by her in being thrown from a wagon while driving along one of the highways in sad town. She alleges that she was so thrown from the wagon by reason of the insufficiency and want of repair of said highway. The defense was, that the highway was not out of repair, and that the injury occurred from the negligence and carelessness of the plaintiff in driving along said highway, and not by reason of any defects in the same.

Upon the trial, the evidence was conflicting as to the exact condition of the highway at the place where the accident happened, and also as to the fact whether the plaintiff was driving carefully at the time of the happening of such accident. The jury found a verdict for the defendant. The plaintiff appeals, and assigns as error that the court improperly permitted one of the witnesses on the part of the defense to answer the following question: "If a person driving from the West Prairie road down this hill on the 16th of November, 1877, should drive in a careful manner, as you would ordinarily drive on ordinary roads, would there be any danger of an accident in consequence of this road?" The plaintiff objected to the question; the court overruled the objections; plaintiff excepted; and the witness answered: "I should judge it would go safely."

The evidence of this witness showed that he was sheriff of the county, and had driven over this road very often, and on the morning of the 16th of November, 1877, the day the accident happened; and that the place mentioned in the question was the same place where the plaintiff claimed the road was out of repair, and where the accident which resulted in her injury happened. He also gave a description of the road at this place, in his evidence.

It is urged that it was error to permit this witness to give his opinion whether a person driving in a careful manner, as he ordinarily drove, along this road, would be in danger of an accident in consequence of the condition of the road at that place. It seems to us very clear that the question should not have been allowed. The question involved all the issues in the case; whether the road was in a reasonable state of repair, and whether the plaintiff was in the exercise of ordinary care in driving over the same at the time the injury occurred. The answer called for was the answer which the jury were required to give as between the parties. The answer said to the jury that the road was in such condition that if the person...

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