Garske v. Town of Ridgeville

• Decision Date: 10 January 1905
• Citation: 102 N.W. 22,123 Wis. 503
• Parties: GARSKE v. TOWN OF RIDGEVILLE.
• Court: Wisconsin Supreme Court

123 Wis. 503

102 N.W. 22

GARSKE

v.TOWN OF RIDGEVILLE.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Monroe County; J. J. Fruit, Judge.

Action by August Garske against the town of Ridgeville. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of an alleged defective highway June 2, 1902. The complaint is in the usual form in such cases. The answer consists of admissions, denials and counter allegations of contributory negligence. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $400. From the judgment entered thereon in favor of the plaintiff, the defendant brings this appeal.Masters & Graves, for appellant.

Doherty & Baldwin, for respondent.

CASSODAY, C. J.

One of the sharply controverted questions was whether the notice in writing prescribed by section 1339 of the Revised Statutes of 1898 was made and served as therein required within 30 days after the injury. It appears that on application of the plaintiff, and on or about June 20, 1902, the witness Newhouse, a justice of the peace, wrote a notice which, as he thought, fulfilled the requirements of that section of the statute, and the same was signed by the plaintiff, but he kept no copy of it, and which notice, it is claimed, was served as required by the statute. Against objection, the witness was allowed to testify to the contents of the notice as follows: “I wrote that notice, I think, to the supervisors of the town of Ridgeville, just the same as section 1339 says. I fulfilled all the requirements, I think. My best recollection is that I had it before me. I know what the notice was. I stated in the notice: ‘To the Town Board of Supervisors,’ I think, ‘of the Town of Ridgeville, Monroe County, Wisconsin--Gentlemen: Please take notice’ (somewhere near that) ‘that I, August Garske, did, on the 2d day of June, 1902’ (I believe I put (‘A. D.’ to it) ‘sustain a severe injury by reason of the insufficiency of the bridge, or of the bridge being out,’ and what he went through (I forget what I called that now)--‘being dangerous, or by neglecting to have it in a safe, passable way’--and I stated the time and place exactly. I stated it was on that little crossroad from Bill Myers, near Bill Myers, south of Bill Myers, in the public highway there running south, the bridge being out, and a fence on both sides, and could not get out any other way, and had to pass through the creek; and he was thrown off his buggy or wagon, or whatever it was--buggy, I think--and received severe internal injuries, for which he claimed damages. The notice was given to Garske. I don't know whether he sent it or not. He signed it, and I put an affidavit to it. I saw him sign it. It was in my handwriting, except the signature of Garske.” The court charged the jury, as a matter of law, that the form of the notice was sufficient to answer the requirements of the statute. The same section of the statute declares that “no notice given hereunder shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the time, describing the place or the insufficiency or want of repair which caused the damage for which satisfaction is claimed, provided it shall appear that there was no intention on the part of the person giving such notice to mislead the other party and that such party was not in fact misled thereby.” Section 1339, Rev. St. 1898. Under this statute it has been held that where it appears from the surrounding circumstances that the notice was given in good faith, and without any intent to mislead, and did not in fact mislead, it was sufficient, although indefinite and uncertain in some particulars. Hoffman v. North Milwaukee, 118 Wis. 278, 281, 282, 95 N. W. 274. Before attempting to prove the contents of the notice, it appeared in evidence that the bridge over the creek had been washed out about two weeks prior to the accident; that, after the bridge went out, teams crossed the creek on a side track, in which it is claimed there was a deep hole, into which one of the wheels of the plaintiff's carriage went at the time of the accident. There seems to have been only that one way to drive down through the creek, and that was fenced on both sides. The pathmaster of the town testified to the effect that he was at the locus in quo soon after the bridge was washed out; that two days after the washout the town board were there, and looked it over; that they did not then cut out a place to go down to the creek on the south bank, but he did before the day of the accident; that he cut it out a little to make it wide enough; that there was a driveway right through there before the washout. Under the circumstances, we cannot say that there was any error in holding, as a matter of law, that such notice was sufficient in form. The mere fact that the witness who drew the notice had made a memorandum in respect to it, which he did not have with him at the time of giving his testimony in court, did not prevent him from testifying to such facts as he remembered. Nor did the mere fact that the witness had given a somewhat different version of the contents of the notice in a deposition taken some months before the trial prevent him from giving such oral testimony. Hughes v. C., St. P., M. & O. Ry. Co. (Wis.) 99 N. W. 897, 901, 902.

2. We perceive no error in excluding testimony tending to prove that other persons drove their teams over the place in question about the same time without having any trouble. Such testimony has frequently been held to be error by this court. Bloor v. Town of Delafield, 69 Wis. 273, 34 N. W. 115;Phillips v. Town of Willow, 70 Wis. 6, 34 N. W. 731, 5 Am. St. Rep. 114;Barrett v. Village of Hammond, 87 Wis. 654, 657, 658, 58 N. W. 1053;Kreider v. Wis. R. P. & P. Co., 110 Wis. 645, 649, 650, 86 N. W. 662. The court did give the defendant ample latitude to show the condition of the highway at the time and place in question.

3. Error is assigned because the court refused to direct a verdict in favor of the defendant. The principal ground upon which this contention is based is the failure of the plaintiff to prove by competent evidence that the...