Branegan v. Town of Verona

• Citation: 174 N.W. 468,170 Wis. 137
• Parties: BRANEGAN ET AL. v. TOWN OF VERONA.
• Decision Date: 04 November 1919
• Court: Wisconsin Supreme Court

170 Wis. 137

174 N.W. 468

BRANEGAN ET AL.

v.TOWN OF VERONA.

Supreme Court of Wisconsin.

Nov. 4, 1919.

Appeal from Superior Court, Dane County; A. C. Hoppman, Judge.

Action by Gladys Branegan, administratrix, and others against the Town of Verona. Judgment for plaintiffs, and defendant appeals. Affirmed.

Action for damages occasioned by an alleged defective highway. On the 16th day of June, 1917, plaintiffs' deceased was driving a Ford automobile north on the highway in question. He and his daughter Gladys were the only occupants of the automobile. The accident happened on a grade or turnpike in a ravine or depression between two hills or declines. The traveled portion of the grade or turnpike was 10 feet wide. The turnpike was slightly elevated above the surface of the ground on the east side of the highway, but on the left side of the highway there was an abrupt decline to a distance of 3 1/2 or 4 feet. The west wheel track was within a distance of 3 inches of the edge of the grade. Grass was growing on this three inches. Grass and weeds growing up on the side of the decline grew up even with the grass growing on the grade, obscuring the fact that the sharp decline was there present. There were two wagon or automobile tracks on this grade, one of which straddled one of the wheel tracks of the other. As the deceased came down the hill from the south, the traveled portion of this grade or turnpike presented a muddy appearance, especially on the west side. He kept well to the left. According to the testimony of the daughter the right-hand wheels were on the edge of the grass. According to other witnesses the right-hand wheels of the automobile were out in the grass a distance of from 12 to 18 inches; one witness for the defense testifying that the right-hand wheel was running “just off on the east edge of the bank there on a wheel track that was out there. It was right off, just a few inches east of the black dirt; right along there in the dirt; there was a wheel track there, and it was running in that.”

It appears that at a point in close proximity to the place where the accident occurred a small drain or gutter extended transversely across the traveled track a distance of about 3 or 3 1/2 feet. It extended through the grass shoulder to lower ground. From the east edge of the shoulder where the gutter was about a foot across and 5 1/2 inches deep, it extended into the traveled track a distance of 3 or 3 1/2 feet, growing shallower and less pronounced. The evidence tends to show that when the front wheels of the automobile encountered this drain or gutter the automobile took a decisive turn to the left, sheered across the turnpike to the west side, where it ran off the west bank and overturned. The daughter was sitting on the right-hand side, and was thrown clear off of the automobile. The deceased, sitting on the left-hand side, was pinned beneath the automobile, and died before he could be rescued. When the automobile overturned it was headed in a direction horizontal with the traveled track.

The jury returned a special verdict by which it was found: (1) That the highway in question was not reasonably safe for public travel; (2) that such unsafe condition was the proximate cause of the death of the deceased; (3) that such unsafe condition had existed a sufficient length of time prior to the accident, so that the defendant town in the exercise of ordinary care ought to have discovered its condition; (4) that the deceased was not guilty of contributory negligence; and (5 and 6) assessed damages. The court ordered judgment in favor of the plaintiffs on the verdict, from which judgment the defendant town appealed.William Ryan, of Madison, for appellant.

Gilbert & Ela, of Madison, for respondents.

OWEN, J. (after stating the facts as above).

The defendant town urges reversal of the judgment because, as claimed, the evidence shows that the highway was reasonably safe for public travel; that the deceased was guilty of contributory negligence; that if the highway was defective such defect was not the proximate cause of the accident; and because of refusal to charge the jury as requested.

It is undisputed that there was a sharp decline on the west side of the turnpike, which decline extended downward a distance of 3 or 3 1/2 feet; that one of the wheel tracks came within 3 inches of the edge of this decline, and that no railing or barrier existed thereat to protect vehicles from going over the bank. The accident occurred because the automobile driven by deceased went over the bank and was overturned.

[1] It is claimed by plaintiffs that the absence of a railing or barrier at the point in question rendered the highway refective and unsafe for public travel. In Miner v. Town of Rolling, 167 Wis. 213, 167 N. W. 242, L. R. A. 1918D, 1178, it was urged that the absence of a railing or barrier under similar circumstances...