Olson v. Town of Luck

• Decision Date: 25 April 1899
• Parties: OLSON v. TOWN OF LUCK.
• Court: Wisconsin Supreme Court

103 Wis. 33

79 N.W. 29

OLSON

v.TOWN OF LUCK.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from circuit court, Polk county; A. J. Vinje, Judge.

Action by Dorothea M. Olson against the town of Luck. There was a judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff sued the defendant town for personal injuries sustained by being thrown from a wagon in which she was riding; her fall being caused, as she claims, by the wagon striking a large projecting rock in a highway of the town just at the side of the traveled track. It appeared on the trial that one Stone was driving, and that he and the plaintiff were riding, in a one-horse wagon, when, from some cause, both of them were thrown out, and the horse ran away, and left the wagon at a point about a mile and a half further along the highway, and that some parts of the harness and the wagon were broken. The evidence of the defendant tended to show that the rock in question was not as large as claimed by the plaintiff, and not prominent enough to constitute a defect in the highway; and the claim was also made that the accident was the result of a break in the harness occurring while the horse was coming down a hill, just before reaching the rock. A special verdict was returned, by which it was found, in reply to questions, (1) that the defendant was guilty of want of ordinary care in respect to the condition of the highway at the time and place of the accident; (2) that such want of ordinary care was the proximate cause of the plaintiff's injury; (3) that the plaintiff was not guilty of any want of ordinary care that contributed to her injury; and (4) that the plaintiff's damages amounted to $1,300. After argument had been made to the jury, the defendant requested the submission of two additional questions as part of the special verdict; the first of which questions asked the jury whether the driver of the wagon was guilty of contributory negligence, and the second question asked whether such contributory negligence on the part of the driver, coupled with want of ordinary care on the part of the defendant, was the proximate cause of the plaintiff's injury. The submission of both these questions was refused by the court, which stated, as one reason therefor, that the requests came too late, and exceptions were taken to the rulings. The charge of the court is not preserved in the bill of exceptions, with the exception of two detached sentences, and no exceptions were taken to any part of the charge during the trial term. Judgment for the plaintiff was entered upon the verdict, and from this judgment the defendant appeals.H. P. Burdick, for appellant.

Frank B. Dorothy, for respondent.

WINSLOW, J. (after stating the facts).

Inasmuch as no exceptions to the charge of the court were filed during...