79 N.W. 29 (Wis. 1899), Olson v. Town of Luck

Citation:79 N.W. 29, 103 Wis. 33
Opinion Judge:JOHN B. WINSLOW, J.
Party Name:OLSON, Respondent, v. THE TOWN OF LUCK, Appellant
Attorney:The cause was submitted for the appellant on the brief of H. P. Burdick, and for the respondent on that of Frank B. Dorothy.
Case Date:April 25, 1899
Court:Supreme Court of Wisconsin
 
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Page 29

79 N.W. 29 (Wis. 1899)

103 Wis. 33

OLSON, Respondent,

v.

THE TOWN OF LUCK, Appellant

Supreme Court of Wisconsin

April 25, 1899

Argued April 6, 1899

APPEAL from a judgment of the circuit court for Polk county: A. J. VINJE, Circuit Judge. 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 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 of 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...

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