Goeltz v. Town of Ashland

• Decision Date: 28 January 1890
• Citation: 75 Wis. 642,44 N.W. 770
• Parties: GOELTZ v. TOWN OF ASHLAND.
• Court: Wisconsin Supreme Court

75 Wis. 642

44 N.W. 770

GOELTZ

v.TOWN OF ASHLAND.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.Geo. P. Rossman, for appellant.

Lamoreux & Gleason, for respondent.

TAYLOR, J.

This action was brought to recover damages for causing the death of Otto Goeltz, by the carelessness and negligence of the town of Ashland. The negligence alleged against the town is that it carelessly permitted an open hole to exist in one of its public streets, which was filled with water to the depth of six feet or thereabouts, and that said Otto Goeltz, while passing along said public street, stepped to fill a rubber ball and get a drink from the water in said hole or well, and in attempting to do so fell into the water and was drowned. There was no cover over this hole or well at the time of the accident. Otto was, at the time of his death, about five years and six months old. On the trial in the circuit court, after hearing the evidence, the learned circuit judge directed a verdict for the defendant. It would seem, from the manner in which this case was argued in this court, that the learned circuit judge directed a verdict for the defendant on the ground that the deceased was, at the time of the accident which resulted in his death, playing in said street, and not using it for the purposes of travel. As, however, the bill of exceptions does not disclose the reasons of the learned circuit judge for directing a verdict for the defendant, we must affirm the judgment, if, upon the whole evidence, the plaintiff has failed for any reason to make out a cause of action against the defendant. The undisputed facts in the case are that the deceased was drowned at the time stated in the complaint, in a well or hole of water within the boundaries of Third street, which was then a public highway in said town, now the city, of Ashland; that the water in the hole was about four feet deep, and there was no cover over the hole; that the water came up to the surface of the ground; that the hole had been dug and boxed by a person not authorized to do so by the town, and, so far as is shown by direct evidence, its existence was unknown to any of the officers of the town up to the time of the accident; that the hole was in a ravine which crossed said Third street (the ravine being from four to six feet deep;) that more than a year before the accident the town authorities had built a good, substantial wagon road or bridge across said ravine in or near the center of said street, twenty feet in width, and guarded on both sides by a substantial railing, and twenty feet from said wagon road, and on the north side of the street a substantial sidewalk of sufficient width, guarded by a...