Dralle v. Town of Reedsburg

• Decision Date: 08 January 1907
• Citation: 130 Wis. 347,110 N.W. 210
• Parties: DRALLE v. TOWN OF REEDSBURG.
• Court: Wisconsin Supreme Court

130 Wis. 347

110 N.W. 210

DRALLE

v.TOWN OF REEDSBURG.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by Lisette Dralle against the town of Reedsburg. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This action was brought by the appellant against the respondent, town of Reedsburg, Sauk county, Wis., to recover for personal injuries sustained by her on account of an alleged defective highway in said respondent town. The appellant had resided in said town for about 11 years prior to the time of injury, and was accustomed to riding over the highway in question. The defect complained of consisted of large sand rock extending across the highway. Appellant at the time of injury was riding over the highway upon a load of potatoes, and claims to have been thrown therefrom by a jolt occasioned by the wheels of the wagon striking the rock in the highway. It is alleged in the complaint that the highway runs north and south; that the defective condition was a few rods north of where the road leading from Lime Ridge joins the highway, running north from Loganville to Reedsburg; that the highway is extensively used; that said highway was laid out on land that is rolling and which slopes to the south, and that underneath and at the surface there exists a great deal of sand rock, from which the water had washed the dirt for a considerable distance and carried it down the hill; that running across said highway at this point is a large sand rock which extends across the entire portion of the highway used for travel; that at either end, either as a part of the rock or as a second large sand rock, towards the south and east on one side and toward the south and west on the other, there were large sand rocks; that said rocks were large and the rain and water washed the dirt away, leaving a depression of from 12 to 15 inches and running back from said center rock southerly a distance of from 15 to 18 feet; that it is impossible to drive on either side of this portion of said road, or that portion usually taken in driving, because of the existence of said rocks; that in traveling over said highway in going from south to north it is necessary to drive over this portion of the highway that had been partially washed out; and that said highway in consequence thereof was insufficient, defective, unsafe, and dangerous for public travel, and had so existed for several months prior to the injury. The answer admits the residence of the appellant, and that the place where the injury occurred is a public highway, and denies the other material allegations of the complaint, and alleges that the injuries alleged to have been received by appellant were caused, if at all, by her own negligence. It is conceded that notice of the injuries was served upon the respondent as required by law, and that the appellant's claim was duly filed with the respondent town and its proper officers in manner prescribed by law, and that said respondent refused to allow said claim or any part thereof. The case was tried by the court and a jury, and after the evidence was in the court directed a verdict in favor of defendant on the ground that plaintiff was guilty of contributory negligence. On direction of the court the jury returned a verdict for defendant, to which plaintiff duly excepted, and from judgment in favor of defendant this appeal was taken.Grotophorst, Evans & Thomas, for appellant.

E. C. Gottry (Daniel H. Grady, of counsel), for respondent.

KERWIN, J. (after stating the facts).

It is insisted on the part of the appellant that the court erred in directing a verdict for the respondent. This contention involves the negligence of the respondent and the contributory negligence of the appellant.

1. The place where the injury occurred was a public highway, under the control of the respondent, much used for public travel, and the first question presented is whether such highway was defective at the place where the injury complained of was received. If the highway in question was defective, there is no doubt but that there was sufficient evidence of notice to the respondent. In respect to the defective condition of the highway, the evidence tends to show that there was a solid ledge of rock extending across the traveled track of the highway, on such an angle as to cause one wheel of a wagon to strike it first; that the roadway was narrow so that it was difficult, if not impossible, to turn...