Carpenter v. Town of Rolling

• Decision Date: 12 October 1900
• Citation: 107 Wis. 559,83 N.W. 953
• Parties: CARPENTER v. TOWN OF ROLLING.
• Court: Wisconsin Supreme Court

107 Wis. 559

83 N.W. 953

CARPENTER

v.TOWN OF ROLLING.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, Langlade county; John Goodland, Judge.

Action by W. H. Carpenter, administrator of Jacob Hetzel, deceased, against the town of Rolling for death caused by a defective highway. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action for damages on account of the death of Jacob Hetzel, the respondent's intestate, which death is alleged to have resulted by reason of a defect in the highway in the defendant town. The evidence showed that Jacob Hetzel at the time of his death was a farmer 38 years of age, living in the town of Aniwa, Shawano county, about 2 1/2 miles from the village of Aniwa, and several miles south of the city of Antigo, in Langlade county. He was a married man, having a wife and three children. On the 18th day of November, 1897, Hetzel left home in the morning with his farm wagon and a team of horses to take a load of rye to the mill at Antigo for the purpose of having it ground into feed. He reached Antigo with his load, and had the feed ground, and started back with the feed upon his wagon in bags at about 4 o'clock p. m. on the same day. While in town he visited several saloons, and on his way home had some difficulty in keeping his team in the road, and was thrown or fell from his wagon upon a piece of traveled road in the defendant town, which is claimed by the plaintiff to have been a highway, at some time between 6 and 7 o'clock in the evening. He was found lying upon the road, dead, with his face badly bruised, at about 8 o'clock p. m., and his team and wagon were found some 45 rods south from the body, standing by the fence. The evidence showed that the body of the deceased was lying about 48 feet south of a large log, the end of which came up close to the east track of the road on which he was traveling, and it is claimed by the plaintiff that the wagon of the deceased struck the end of the log and threw him out. There was considerable evidence upon both sides as to whether or not the deceased was intoxicated, but, as the subject will be treated at length in the opinion, it is unnecessary to state it here. A special verdict was rendered, as follows: “(1) Was Jacob Hetzel killed by falling from his wagon at or near the time and place described in the complaint? Yes. (2) Was the death of Jacob Hetzel caused by the defective and unsafe condition of the highway at the time and place in question? Yes. (3) Was the defective and unsafe condition of said highway at the time and place in question the proximate cause of Jacob Hetzel's death? Yes. (4) Had such defective and unsafe condition of the highway existed for such a length of time prior to the accident that, in the exercise of ordinary care and prudence, the defendant would have known of it and repaired the same? Yes. (5) Was Jacob Hetzel at the time of the accident guilty of any want of ordinary care and prudence which contributed to the accident which caused his death? No. (8) Was Jacob Hetzel so intoxicated at the time of the accident as to be incapable of exercising ordinary care in the management of his team to avoid injury? No. (7) If you answer the last question, ‘Yes,’ then answer this question: Did such intoxication contribute to the injury he received? (8) At what sum do you assess the plaintiff's damages? $1,500.” Judgment for the plaintiff was rendered upon this verdict, and the defendant appealed.

T. W. Hogan, for appellant.

B. A. Cady and Bump, Kreutzer & Rosenberry, for respondent.

WINSLOW, J. (after stating the facts).

A number of assignments of error were made by the appellant which are not considered well taken, and these will be first considered.

1. It is said that the locus in quo was not shown to be a highway. The road in question was shown to have been first opened by private parties, but it was also shown that it had been in existence and generally used by the public for 12 or 13 years, and, further, that several taxpayers had been permitted by the overseer of highways to work out their road taxes at various times upon it. We do not think, however, that the question was an open one, under the pleadings. The complaint alleged that the road where the accident occurred was a public highway in the defendant town. The answer admits that there is and was a wagon road in said town at the place claimed, which is used by the public for travel by teams and by travelers on foot, but as to whether it is a legally laid out road or highway, or whether said town is in duty bound to keep the same in repair, defendant has not sufficient knowledge or information to form a belief, and therefore denies the same. This is a style of pleading not to be commended. The town should, in reason, be held to know what roads are public highways within its limits. The allegation that the road in question was a public highway is not met either by positive denial or denial upon information and belief, as the statute requires. Rev. St. § 2655. Taken altogether, the allegations amount to an admission that the road was generally used by the public, but that the town officers had no knowledge or information as to whether it was legally laid out, or as to whether the town was bound to keep it in repair. The question whether it was legally laid out was not the essential question, but rather whether it was a highway in fact. It might have become a highway by dedication and used by the public, though never formally laid out, and the allegation in the complaint that it was in fact a public highway is nowhere denied, but rather admitted by the negative pregnant statement of want of knowledge as to whether it was ever legally laid out. Althouse v. Town of Jamestown, 91 Wis. 46, 64 N. W. 423.

2. It is argued that no defect in the highway was shown, because there was shown to be a smooth road for a little over 10 feet in width at the point of the accident. This position is untenable, because it is well settled that, notwithstanding a road may contain a smooth traveled track of sufficient width, still, if there is an obstruction or declivity so close to the traveled track as to render the road unsafe for those traveling thereon in the exercise of ordinary care, the highway may be insufficient. Slivitski v. Town of Wein, 93 Wis. 462, 67 N. W. 730, and cases cited. The question whether the log in this case was such an obstruction was properly for the jury.

3. It is claimed that there was no sufficient evidence to justify a finding that the deceased was thrown from the wagon by reason of its striking the log, and that, even if that be admitted, still that it is mere conjecture whether his death resulted from the injuries received in his fall. We think there was sufficient evidence justifying the submission of both questions to the jury. The log was a large hemlock log, lying at nearly right angles with the traveled track, and with its end sharpened off, and within a few inches of the east wagon track. It had become somewhat soft and “dozy” on the outside, and a number of the witnesses who were at the place immediately after the accident found a fresh mark on the north side of the log, and about eight inches from the end, which seemed to have been just made by the wheel of the wagon striking it, and one witness testified that there was a wagon track leading from the north to the point where the log was...