Fisher v. Town of Franklin

• Decision Date: 11 December 1894
• Citation: 89 Wis. 42,61 N.W. 80
• Parties: FISHER v. TOWN OF FRANKLIN.
• Court: Wisconsin Supreme Court

89 Wis. 42

61 N.W. 80

FISHER

v.TOWN OF FRANKLIN.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Jackson county; W. F. Bailey, Judge.

Action by Esther K. Fisher against the town of Franklin. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was for the recovery of damages for an injury sustained by the plaintiff by reason of the insufficiency and want of repair of a bridge and highway of the defendant while she was traveling over and along the same. The complaint states, in substance, that the highway and bridge passed over a deep and narrow ravine; that the approaches to the bridge were too narrow and crooked, and there was a want of suitable railing or barriers to protect and prevent persons and teams passing over the bridge from falling or being thrown therefrom, and down the embankment, into the deep ravine, and that on the south side there was no railing or barrier, and the one on the north side consisted of one or two poles resting upon forked stakes or crutches set in the ground, extending along the bridge about four feet above it, and one fork or prong of the crutch at the northeast corner of the bridge extended in towards, and so near, the traveled track, that it was difficult, if not impossible, to pass it with a load of hay extending beyond the sleigh or box thereon, without coming in contact with it; that in approaching the bridge from a westerly direction the highway passed down a steep hill, and on a curve from northwest to southeast, and was lower on the north side than on the south, and curved northward in going in an easterly direction, owing to a bluff or hill on the south side, so that a team could not turn out on that side, and avoid contact with the forked crutch of the barrier on the north side, and without danger of overturning the load, and being thrown down into the ravine, of which the defendant had notice, etc.; that at the time in question the plaintiff was passing over the bridge and highway, in an easterly direction, with a span of horses and sleigh, with a hayrack and small load of hay thereon, but by reason of said defects, etc., the hind end of the load and hayrack upon which she was riding and driving struck and was caught upon said forked stake at the northeast corner of the bridge, and the load of hay, rack, and sleigh were overturned, and thrown down the embankment, on the north side, a distance of about 30 feet, the plaintiff falling among trees upon the ground about 30 feet from the approach to the bridge, on the east side thereof, whereby she alleged that, without fault or negligence on her part, she was greatly injured, etc. The answer put in issue these allegations. Upon trial before a jury, a special verdict was found, in substance, in conformity with the plaintiff's claim, and, among other things, that the defects causing the injury were: (1) Not sufficient width of road or approach to bridge; (2) too short curve of road; (3) bridge not in line of road; (4) lack of proper and sufficient barriers or guards; and (5) the crutch post on north side of bridge projecting over the bridge too far, with which the sleigh or load thereon came in contact,--and that the plaintiff was not guilty of any want of ordinary care which contributed to her injury, and fixing the damages at $1,200. A motion was made to set aside the verdict, and for a new trial, on the ground that each of the special answers was against the law, and not supported by the evidence. The motion was denied, and judgment was given on the verdict in favor of the plaintiff, from which the defendant appealed.Carl C Pope, for appellant.

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