Conrardy v. Sheboygan County

• Decision Date: 01 May 1956
• Citation: 273 Wis. 78,76 N.W.2d 560
• Parties: Victor John CONRARDY, Appellant, v. COUNTY OF SHEBOYGAN, a municipal corporation, Respondent. Catherine Mary CONRARDY, Appellant, v. COUNTY OF SHEBOYGAN, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 560

76 N.W.2d 560

273 Wis. 78

Victor John CONRARDY, Appellant, v. COUNTY OF SHEBOYGAN, a municipal corporation, Respondent.

Catherine Mary CONRARDY, Appellant, v. COUNTY OF SHEBOYGAN, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

May 1, 1956.

Federer, Grote, Hesslink & Rohde, Sheboygan, for appellant.

David Weber, Dist. Atty., Alexander Hopp, Asst. Dist. Atty., Sheboygan, for respondent.

BROADFOOT, Justice.

The plaintiffs contend that the jury's finding that the highway defect had not existed a sufficient length of time prior to the collision to give notice thereof to the county is contrary to the evidence and to the law. The plaintiffs called one witness who testified that the defect in the highway had existed from the end of February or the beginning of March, 1952. Another witness, a police officer of the Sheboygan police department, testified that he saw the hole in the highway a month and a half or two months before the accident.

On behalf of the defendant county, several witnesses testified that they had traveled over the highway prior to the date of the accident and that they had not seen the hole therein. One was a county traffic officer who testified that he had driven over that highway within a week prior to the accident and that he did not see the hole on that occasion, and that as traffic officer he noted highway defects and notified the highway department of any that he discovered. The highways within the county were divided into sections, each of which was in charge of a foreman. County Trunk EE was in section 2, and the foreman of that section testified that every week he or one or more of his men checked every mile of highway therein. He testified that County Trunk EE was inspected the week before the accident and that the whole of said road had been patched during the week prior to May 20, 1952, and that there was no hole therein on the day the patching was done. Another highway employee testified that he drove over the road in question frequently prior to May 20, 1952, and that he did not recall seeing any hole therein.

The plaintiffs contend that the testimony adduced on behalf of the county was purely negative testimony and was insufficient to raise an issue of fact for the jury to determine, in the face of the positive testimony of the plaintiffs' witnesses that the hole had been in the highway for approximately two and one-half months.

'The weight to be attached to the witnesses' testimony must be left to the jury; negative testimony is admissible and, together with corroborating circumstances, it may outweigh positive testimony.' 3 Jones, Evidence, 4th ed., p. 1679, sec. 898b.

In a footnote to the statement reference is made to the case of Richter v. Dahlman & Inbush, 179 Wis. 7, 190 N.W. 841, 30 A.L.R. 747. In its decision in that case this court said, 179 Wis. at page 10, 190 N.W. at page 842:

'It is undoubtedly the rule that the testimony of a credible witness that he saw or heard a particular thing at a particular time and place is more reliable than that of an equally credible witness, who with the same opportunities testifies that he did not hear or see the same thing at the same time and place. It is also well settled that evidence may be negative in form and yet given under such circumstances that the rule does not apply. * * *'

If the county had merely called residents of the area and they testified that they did not see the hole in the highway at the point in question, such testimony would be of little value. People engaged in different pursuits naturally are interested in and tend to observe different things. An undertaker will observe new graves in cemeteries along the highway. Monument salesmen will observe newly erected monuments therein. Utility men will observe the construction of poles and wires. Highway officers and employees are interested in and tend to observe highways, noting the defects as well as the good points of maintenance and repair. Thus as circumstances are added they tend to increase the probability that the witness would have observed the thing in question. The opportunity to observe and the likelihood of observing may be so favorable that a denial by a witness that a hole...