Grimm v. Town of Washburn

• Citation: 75 N.W. 984,100 Wis. 229
• Parties: GRIMM v. TOWN OF WASHBURN.
• Decision Date: 23 June 1898
• Court: United States State Supreme Court of Wisconsin

100 Wis. 229

75 N.W. 984

GRIMM

v.TOWN OF WASHBURN.

Supreme Court of Wisconsin.

June 23, 1898.

Appeal from circuit court, Bayfield county; John K. Parish, Judge.

Action by P. H. Grimm against the town of Washburn. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought to recover damages alleged to have been caused to plaintiff's team by reason of the defective condition of a certain bridge in the defendant town. The plaintiff had judgment for $150, from which this appeal is taken.A. W. Warden, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondent.

BARDEEN, J.

We have not been favored by any assignment of errors, but are left to a consideration of appellant's entire argument to determine the grounds of its appeal. A statement is made that the complaint does not state facts sufficient to constitute a cause of action, but counsel fails to state in what particular the complaint is bad. If the attorney is unable to give any reason for the faith that is in him, we shall not help him to a reversal by hunting through the record to ascertain whether his faith is well founded. Again, he says, admitting that the complaint does state a cause of action, there is a fatal variance between the allegations and the proof. Again we are left in doubt and uncertainty. The variance said to be so fatal is left to be imagined or sought out in a maze of testimony covering some 40 or 50 pages of the printed case. Not one word is offered in the printed argument to put us on the trail of the “fatal variance,” and we must decline to go scouting to find it.

Counsel further insist that there is no evidence that the road on which the bridge was situated was a public highway. One answer to this contention is that it is alleged in the complaint to have been on a public highway, and it is not denied. Defendant's counsel attempted to put this fact in issue, but, by an error much more fatal than the “variance” mentioned, he neglected to cover this allegation in his answer except in the manner now to be stated. The allegations of the answer in this respect are as follows: “The defendant, further answering the plaintiff's complaint, denies, on information and belief, that for a great number of years previous to the time, alleged in the plaintiff's complaint, of the injury therein complained of, it had laid out, maintained, and used as a highway the road described in the plaintiff's complaint. Defendant further denies, on information and belief, for twenty years or more, that it kept and maintained several bridges as alleged in ...