Coppins v. Town of Jefferson

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Coppins v. Town of Jefferson, 126 Wis. 578, 105 N.W. 1078 (Wis. 1906)
• Decision Date: 09 January 1906
• Parties: COPPINS v. TOWN OF JEFFERSON.

126 Wis. 578

105 N.W. 1078

COPPINS

v.TOWN OF JEFFERSON.

Supreme Court of Wisconsin.

Jan. 9, 1906.

Appeal from Circuit Court, Jefferson County; B. F. Dunwiddie, Judge.

Action by Gavin G. Coppins against the town of Jefferson. A verdict was rendered in favor of defendant which the court set aside, and granted a new trial, from which order defendant appeals. Affirmed.

Action to recover for personal injuries alleged to have been caused by the negligence of the defendant in respect to the safety of one of its highways.

The defect complained of consisted of a pile of stone within the limits of the highway on the westerly side of the travelled track so near thereto that, in view of the fact that such track necessarily diverged somewhat easterly from a direct line in passing the same, a traveler driving a horse, or horses, drawing a vehicle at that point, in the nighttime would be liable to cause a collision between such vehicle and the obstruction. Plaintiff claimed that such condition of the highway had existed for more than a year prior to the 10th day of October, 1903; and that in the nighttime of said day, while he, in the exercise of ordinary care, was driving a horse drawing a road cart, in which he was riding, by the obstruction, the right wheel of the cart collided with a stone forming part of such obstruction, which stone was within a few inches of the wheel track, by reason of which he was thrown upon the stone pile and dragged by the horse a considerable distance, severely injuring him. The facts in regard to the matter were stated in the complaint by proper allegations with all essentials to make out a cause of action against the defendant. The latter answered, denying that plaintiff was injured through any negligence on its part, and pleaded contributory negligence.

The cause was submitted to the jury with instructions, resulting in these special findings. (1) The highway at the time and place where plaintiff was injured was not reasonably safe for public travel by persons in the exercise of ordinary care. (2) The insufficient condition of the highway was the proximate cause of such injury. (3) Want of ordinary care on the part of the plaintiff contributed to his injury. (4) $2,000, will be required to compensate plaintiff for his injury.

Plaintiff moved the court to set the verdict aside and grant a new trial for errors in giving and refusing instructions. The motion was granted and the defendant appealed.R. B. Kirkland, for appellant.

Rogers & Rogers (Burr W. Jones, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

The first proposition submitted for consideration on behalf of appellant is this: “Notwithstanding the fact, if it be a fact, that the trial court committed reversible error in its charge to the jury on the subject of contributory negligence, still the motion of defendant for judgment should have been granted for the reason that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.” That is grounded on the undisputed evidence that respondent was perfectly familiar with the condition of the highway and did not bear it in mind as he approached the stone pile and drive his horse with a view of avoiding the danger of his vehicle colliding therewith. The rule is invoked that if a person using a public way knows of a dangerous defect therein and is injured by coming in contact therewith notwithstanding such knowledge, the legal presumption of fact, in the absence of evidence sufficient in some reasonable view thereof to rebut it, is that he either remembered such defect or was guilty of want of ordinary care in not doing so, and that the injury happened by reason of his contributory negligence. Cuthbert v. City of Appleton, 24 Wis. 383;Wheeler v. Town of Westport, 30 Wis. 392;Simonds v. City of Baraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St. Rep. 895;Crites v. City of New Richmond, 98 Wis. 55, 73 N. W. 322;Collins v. City of Janesville, 111 Wis. 348-356, 87 N. W. 241, 1087;Devine v. City of Fond du Lac, 113 Wis. 61-66, 88 N. W. 913;Seaver v. Town of Union, 113 Wis. 322-330, 89 N. W. 163;Collins v. City of Janesville, 117 Wis. 415-427, 94 N. W. 309.

As said in the first Collins Case, the presumption mentioned is one which yields readily to any reasonable explanation of the failure to avoid the defect, so as to carry the case to the jury on the subject of contributory negligence. Perhaps as good an illustration of the rule last stated as can be found in any case is in Crites v. City of New Richmond, supra. A person of mature years walking upon the sidewalk in the day-time stepped into a hole in the decking and was injured. He was perfectly familiar with the defect and considered it dangerous. Had he paid attention to the matter as he proceeded the hole could not have escaped his notice. He was caused, momentarily, to direct his attention away from his line of travel by reason of a person calling to him from the opposite side of the street. While his attention was so diverted the accident happened. In the second Collins Case the person received her injury by stepping into a hole in a sidewalk while travelling thereon. She was familiar with the defect and it would have necessarily have attracted her attention if she had looked where she was going. Her attention was momentarily diverted by endeavoring to discover where a child had gone, who, an instant before, was on the walk before her but had disappeared. Further, she thought the defect was a little further on.

In view of the above authorities it is considered that there was evidence from which the jury might fairly have decided that respondent was excusable for not paying more efficient attention to the defect causing his injury. The obstruction was so near the wheel track that if the horse in passing travelled on the side next thereto the wheel on such side was liable to leave the track and reach it. It was a dark night,--so dark that a person was liable to drive past the obstruction without observing it. One circumstanced as respondent was in approaching the defect could not readily have observed nearby objects with reasonable distinctness. He did not forget the existence of the defect. He was mistaken as to whether he had passed it or not. For some time before the accident he had been, at intervals, engaged in conversation with a friend, who was following him driving a horse drawing a covered carriage. Those circumstances, it seems, amply justified the court in sending the case to the jury. True, respondent's attention was not diverted from the region of the defect by anything outside thereof, but the conditions were such that neither the obstruction nor the course of the horse, as regards keeping exactly in the proper line of travel so as to avoid it, were readily observable. By reason of the darkness opportunity for observing the obstruction or the exact course of the horse was efficiently interfered with, and there was interference also as to observing other objects, which was liable to cause a mistake on the part of respondent respecting his exact location with reference to the defect. All these matters must for the purposes of testing the error assigned be considered as established, since the jury might have so found the facts from the evidence. Probably it is within the experience of most men who have driven a single horse on a country road on a dark night that the animal would frequently take one side of the track or the other causing the vehicle upon the side of divergence to leave the track without the driver being immediately...