Bloor v. Town of Delafield

• Decision Date: 20 September 1887
• Citation: 69 Wis. 273,34 N.W. 115
• Parties: BLOOR v. TOWN OF DELAFIELD.
• Court: Wisconsin Supreme Court

69 Wis. 273

34 N.W. 115

BLOOR

v.TOWN OF DELAFIELD.

Supreme Court of Wisconsin.

September 20, 1887.

Appeal from circuit court, Waukesha county.

This action was brought to recover damages for injuries to the plaintiff, his wife, and property, alleged to have been caused by a defect in a highway in the defendant town. The alleged defect was a box for running off mortar, standing on the side of the highway, which frightened the horse of the plaintiff as he was being driven past it in the dusk of the evening, causing him to turn around and upset the buggy to which he was hitched, and in which the plaintiff and his wife were riding, thus causing the injuries complained of. The box was about eight feet long, three feet wide, and one foot deep, and was white with lime, having been in use three or four years. It was depositedon the side of the highway on a certain Saturday evening in June, for one Blair, who intended to remove it to another point, away from the highway, and to use it in the erection of a building at that point. The testimony tends to show that on the same Saturday evening Mr. Blair knew the box had been so left for him, and it was proved that he knew it was there, and saw it the next morning. He left it lying upon the side of the road, although he removed it a little further from the traveled track. The accident happened on the same Sunday, between 8 and 9 o'clock in the evening. Mr. Blair was the overseer of the road-district, which included the highway upon which the box was left.

The rulings of the court on the trial and the testimony are sufficiently stated in the opinion. The jury found for the plaintiff, and assessed his damages at $114. A motion on behalf of defendant to set aside the verdict, and for a new trial, was denied, and judgment for the plaintiff entered pursuant to the verdict. The defendant appeals from the judgment.

E. W. Chapin and M. S. Griswold, for respondent.

Hurlbut & Robinson, for appellant.

LYON, J.

The recovery in this action was confined to the items of loss of services of plaintiff's wife, and medical attendance upon her, and damages to the buggy and harness. The plaintiff testified that he received quite severe and lasting injuries by being thrown from his buggy; yet the jury failed to award him any damages therefor, and evidently assessed his damages at the lowest sum the testimony would justify. We may be permitted to express a double surprise at the developments in this record. We are surprised that the town should appeal from so moderate a judgment, and thus take the risk, should it be reversed, of the recovery of a much larger judgment against it on another trial. On the other hand, we are surprised that, when the motion for a new trial was made, the plaintiff did not consent that it might be granted. But the town is here asking for a reversal of the judgment, while the plaintiff seeks an affirmance. We must therefore consider the errors assigned, or at least such as are relied upon by the appellant town.

1. It is maintained that the town had no sufficient notice that the mortar-box was left in the limits of the highway, to charge it with the duty of removing it before the accident happened, and hence that the defendant's motion for a nonsuit should have been granted. The jury had a right to find from the testimony that Mr. Blair, the overseer of that highway, had notice, on Saturday night, that the box was there. He certainly had such notice the next morning. Notice to him was notice to the town. If the box was liable to frighten horses passing it, either by day or in the night-time, especially those of ordinary gentleness, he should have caused its removal at once. The intervention of a Sunday did not suspend this duty, for the personal safety of travelers on the highway was endangered by its non-performance. The accident occurred between 8 and 9 o'clock on Sunday evening, the day after the box was so left there. After the overseer knew it was there, he had ample time in which to remove it, before the plaintiff's horse was frightened by it. The circuit judge held that sufficient notice to the town of the alleged defect in the highway was proved. We think the ruling correct, and that the motion for a nonsuit was properly denied. There is nothing in Alexander v. Oshkosh, 33 Wis. 283, or in Bailey v. Spring Lake, 61 Wis. 230, 20 N. W. Rep. 920, in conflict with what is here said. The ruling of the judge on this subject is sustained by the cases of Jaquish v. Ithaca, 36 Wis. 108, and Parish v. Eden, 62 Wis. 272, 22 N. W. Rep. 399.

2. Testimony was offered on behalf of the defendant town to show that numerous horses were driven past the mortar-box on the Sunday it stood there, without...