Cartwright v. Town of Belmont

• Citation: 17 N.W. 237,58 Wis. 370
• Parties: CARTWRIGHT v. TOWN OF BELMONT.
• Decision Date: 26 October 1883
• Court: United States State Supreme Court of Wisconsin

58 Wis. 370

17 N.W. 237

CARTWRIGHT

v.TOWN OF BELMONT.

Supreme Court of Wisconsin.

Filed October 26, 1883.

Appeal from circuit court, Waupaca county.

This is an action to recover damages for personal injuries alleged to have been caused by a defective highway in the defendant town. At the place where the injuries complained of were inflicted, and for some distance in either direction, the highway in question had been cleared nearly or quite the whole width thereof. Through the center of this cleared strip a track had been graded 25 or 30 feet in width, and was made suitable and safe for travel. This had all been done by the defendant town two or three years before the accident, and from thence until the plaintiff was injured the graded track had been constantly used and traveled by the public. The course of the highway is north and south. Since 1879 a portion of the travel on such highway has diverged from the graded track, and made a side track 16 or 18 feet to the east of it, but within the limits of the highway. This side track had never been opened for travel by the town, but was usually used by the public in traveling the highway when the plaintiff was injured. It extends a considerable distance north and south of the place of the accident. On September 4, 1880, a little after dark, the plaintiff was being driven along the highway from the north, on such side track, in a buggy drawn by two horses. When moving at a slow trot, the right wheel of the buggy struck a small stump standing a few inches west of the west wagon rut of such side track, upsetting the buggy and throwing the plaintiff violently against a fence standing on the east side of the track, thus inflicting the injuries complained of. The foregoing facts appear from the undisputed evidence and the special findings of the jury. The jury also found that the stump was so near the side track as to prove an obstruction thereon; that the injury was caused thereby; that the plaintiff was using ordinary care and diligence in traveling the road at the time of the accident; and that if the plaintiff is entitled to recover, her damages by reason of the injury complained of are $1,100. The verdict is special, no general verdict having been returned.

Considerable testimony was given on the trial, on behalf of the town, tending to show that the authorities of the town, and perhaps other citizens thereof, had repeatedly from time to time, during the whole period since the side track was first traveled, placed obstructions therein, with a view to turning the travel upon the graded track; but these had frequently been removed, presumably by persons traveling the highway, who preferred the side track because it was a little more firm than the other. After denying a motion for a new trial, the court rendered judgment for the plaintiff on the special verdict for the damages assessed by the jury, and for costs. The defendant town has appealed from the judgment. The case is further stated in the opinion.G. W. Cate, for respondent, Eliza A. Cartwright.

Raymond & Haseltine, for appellant, the town of Belmont.

LYON, J.

The jury found specially that the side track upon which the plaintiff was traveling when she was injured had been generally used by the public for travel since 1877, and the same was, at the time of the accident, usually so used. These findings were directed by the court on the ground that there was no conflict in the testimony on those points. The question was submitted to the jury whether the stump, which was the cause of the accident, was so near the side track as to form an obstruction to travel thereon, and the jury answered it in the affirmative. These are the only findings from which any presumption can be drawn that the highway was insufficient or out of repair, or that the defendant town had been guilty of negligence in that behalf. There is no direct finding that the town was in default in respect to the highway.

The evidence is undisputed that the graded track was in every respect sufficient and safe for public travel; that it was much traveled; and that it was the only track which had ever been opened for travel by the town. In such a case the general duty of the town and the traveler upon the highway is thus stated by DIXON, C. J., in Kelley v. Town of Fond du Lac, 31 Wis. 179: “The responsibility of towns, without doubt, primarily extends only to losses or damage sustained by reason of defects in the traveled portion of the highway, for they are not bound to keep the highway in its whole width in a suitable or safe condition for travel. It is, in general, the duty of the traveler, therefore, to remain in the traveled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence if, without necessity, or for his own pleasure or convenience, he voluntarily deviates from the traveled track, which is in good condition, and in so doing meets with an accident from some cause outside of the traveled track, the town will not be responsible for any damage or injury which he may thus sustain. This was so held in Sykes v. Pawlet, 43 Vt. 446.” The same rules were asserted in Matthews v. Baraboo, 39 Wis. 674. See, also, Cremer v. Portland, 36 Wis. 92.

Yet it must be conceded, we think, that the town may, by long acquiescence in the use of a side track by the public as a part of the traveled highway, become bound to keep the same in repair as a part thereof, although it has, as in this case, provided another sufficient track for such travel. There may be two or more authorized traveled tracks along the same highway, and where there is more than a single track, and nothing has been done by the authorities to indicate to travelers that any of the tracks are unauthorized, the traveler may well assume that travel is authorized upon any of them. To relieve itself from liability when the public travel, or some part of it, has diverged from the prepared track, and has found another track, equally accessible to travelers, and apparently as much traveled as the other, the town should give some reasonable notice to the public traveling there that the use of the side track is unauthorized. This may be done by placing obstructions therein, or by putting up notices, or in any other manner which will sufficiently notify travelers that the town desires them to use the graded track alone. Indeed, the presence of a graded track in the center of a highway may of itself be some indication that it, and not an unworked side track, is the track which the town or municipality intends the whole travel shall be confined to. In this case, in addition to the fact that the center track was graded and prepared for travel upon it, while the side track was not, considerable testimony was introduced on behalf of the town tending to prove that the authorities of the town, and other citizens thereof, presumably in the interest of the town, placed obstructions in the side track from time to time during nearly or quite the whole period it was traveled by the public, for the purpose of preventing its use, and turning the whole travel upon the graded track. If all proper and reasonable precautions were employed to that end it is clear that the side track never became a part of the traveled highway, and the town was under no obligation to keep it in repair as such. In that case the plaintiff cannot recover in this action. See Seward v. Milford, 21 Wis. 485;Klatt v. Milwaukee, 53 Wis. 196; [S. C. 10 N. W. REP. 162.]

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