Coats v. Town of Stanton

• Decision Date: 03 April 1895
• Citation: 90 Wis. 130,62 N.W. 619
• Parties: COATS v. TOWN OF STANTON.
• Court: Wisconsin Supreme Court

90 Wis. 130

62 N.W. 619

COATS

v.TOWN OF STANTON.

Supreme Court of Wisconsin.

April 3, 1895.

Appeal from circuit court, Dunn county; E. B. Bundy, Judge.

Action by Lillian Ida Coats against the town of Stanton. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the plaintiff to recover against the defendant town the damages she alleged she had sustained in consequence of a personal injury received while traveling upon one of its highways, by reason of its insufficiency and want of repair. The complaint contained the usual allegations, and the answer was substantially a general denial. The evidence tended to show that the road at the point where the accident happened was on a side hill, made by plowing into the hill and throwing out the dirt. The road was on the side hill for a distance of 80 or 100 rods, and portions of it steep and part of the way sandy. It was very narrow at the point in question at the top of the hill,--only 7 or 8 feet wide,--but practically straight and level, and the roadbed was firm and smooth, the side hill rising on the right hand and the steep slope descending on the left; that there was some snow and ice on and along and next to the right-hand or hill side. The evidence also tended to show that the plaintiff was familiar with the road, and had traveled it frequently, and that on the occasion in question she, with her three children, were riding in a buggy in which there was but a single seat, drawn by her father's horse, which was old and blind, and had been for several years; that he had a habit when driven of carrying his head to the left, and veering around in that direction, and getting out of the road, but the evidence on this point was conflicting. It appeared that the plaintiff had often driven the horse. She sat on the left hand of the seat, holding her infant in her arms. Her 3 year old girl was between her and her brother; and her boy, 8 years old, was standing in the back part of the buggy, holding on to the seat. The brother, about 23 years of age, was driving, holding the reins in one hand, and they had been talking until they reached the level place described in the road, when the horse, buggy, and all who were in it went over the bank at the left of the track, falling down the hillside, and the plaintiff received the injury of which she complains, namely, a fracture of one of the bones of the arm, and a dislocation of the wrist. It was not yet dark when the accident occurred, and neither the plaintiff nor her brother could state very definitely how it happened. She said: “The first we knew of it, the front wheel went over the bank, and that drew the horse back, and all. * * * I could not tell whether the horse stumbled, or had a snowball on his feet that caused him to stumble, or whether it was the buggy that slid.” Her brother testified: “I was driving along, and the first thing I knew we went over the bank. It was done so suddenly that neither of us knew how the accident occurred.” There was other evidence tending to show contributory negligence on the part of the plaintiff, and also evidence to rebut such claim. The court submitted the case to the jury to find a general verdict, and to answer therewith two questions, namely: (1) Was the highway at the point where the accident occurred in a reasonably safe condition for the passage of vehicles over it? (2) Was the plaintiff or her brother, who was driving at the time, guilty of any want of ordinary care which contributed to the plaintiff's injury? The jury retired to consider of their verdict, and the next day returned in court, and reported they had not agreed upon a verdict, and the court ordered them to retire for further consideration. On the same day the jury again returned, and desired a view of the place of the accident, which was ordered and had, after which the jury proceeded to further consideration of the case, and at 9 o'clock in the evening they returned with a general verdict in favor of the plaintiff for $250, answering the first question in the negative, and to the second question they answered that, “There was some want of care.” The court returned the verdict and questions to the jury, on the ground that the second question was not properly answered, instructing them that the answer was insufficient,--First, because the jury did not say whether the plaintiff was guilty of any want of ordinary care; second, the answer did not say whether the want of care contributed to the injury; and the court instructed the jury as to the different degrees of care and of negligence, and that they should answer the question as it reads, by “Yes” or “No,” and that: “Of course, if you answer ‘Yes,’ to the second interrogatory, the general verdict for $250 cannot stand.” The jury again retired for half an hour, and afterwards returned to the court with a verdict and answers as before. The court returned the verdict and questions on the ground as before, and said: “The second interrogatory I want you to answer by ‘Yes' or ‘No.’ You came to the conclusion that there was some want of care. You don't say what kind of care;” and instructed the jury again on the different degrees of care and negligence, and said: “Now, if you say that she or her driver were guilty of any...