Fopper v. Town of Wheatland

• Decision Date: 19 February 1884
• Parties: FOPPER v. TOWN OF WHEATLAND.
• Court: Wisconsin Supreme Court

59 Wis. 623

18 N.W. 514

FOPPER

v.TOWN OF WHEATLAND.

Supreme Court of Wisconsin.

Filed February 19, 1884.

Appeal from circuit court, Vernon county.J. M. Marrow and Campbell & Field, for respondent, Michael Fopper.

Butt & Graves, for appellant, the town of Wheatland.

ORTON, J.

This action is brought to recover damages for personal injury occasioned by the insufficiency or want of repair of a certain highway in the defendant town.

1. The evidence, which tended to show that the highway at the place of the injury was so narrow and so hedged in by an embankment on one side and a fence on the other that two teams could not safely pass each other, and that such was its condition for a long distance, and that the plaintiff, in attempting to pass another team at such place, in the most prudent manner, suffered the injury complained of, and that the team approaching him and his team at that place could not be seen until very near such place, sufficiently shows that the plaintiff was not guilty of any contributory negligence, and that the town was guilty of great negligence in allowing for a long time the highway at such place to remain in such condition, and justified the jury in finding for the plaintiff at least the very small damages awarded. The law which requires highways to be four rods wide, and suitable for common use by the public, most certainly requires it to be sufficiently wide for two teams to pass each other with safety, if not with convenience, and the neglect disclosed in this case of the town authorities was very flagrant. After such neglect, for them to escape liability to a person trying to use such highway and suffering injury thereby, by claiming that persons with teams ought not to attempt to pass each other in such a place, is but adding insult to injury.

2. The only objection seriously urged against the plaintiff's recovery is one which goes to his right of action, based upon his failure to give the notice required by section 1339, Rev. St., which requires a notice in writing to be given to the clerk or supervisors of the town within 90 days after the happening of the injury, “stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it.” There is no question made but that a notice attempting to comply with this requirement was given to the proper person and at the proper time, and the only objection to that notice is that it does not state correctly “ the place where such damage occurred.” The description generally of the insufficiency or want of repair of the highway which occasioned the injury was certainly very full and accurate, according to the testimony on behalf of the plaintiff. “The place where” is stated in the notice as “in section eighteen, in said town, and between the residence of H. M. Bean and O. D. Wilson, and on the leading road from De Soto to Diamond mill.” Diamond mill is at the east and De Soto at the west, on this highway, running nearly east and west after it leaves the place where the plaintiff was injured. The residence of Bean is 40 rods, in a southerly direction, from the highway, and there is a gateway to it near the highway, and the residence of Wilson is 140 rods west of said gate, on the highway. A few rods east of said gate the road turns around a hill, making a considerable curve, and near the termination of such curve, and within it, the accident happened, and the bend or curve around the hill extended some 40 rods, and in all that distance the road had a cut-down or embankment on the upper side of between one or two feet, and a fence and timber on the lower side, with a traveled track between not wide enough for two teams to pass each other safely. The plaintiff was coming with a team of horses from Diamond mill towards De Soto, and at that place did not and could not see the team which he there met until within four or five rods of it. The team met turned out as far as possible, and the plaintiff tried to pass by, but the horses became frightened by the collision of the two teams and vehicles, and started up quickly, and the plaintiff's vehicle was overturned and the injury inflicted. This is the substance of the evidence to that effect.

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