Groundwater v. Town of Wash.

• Decision Date: 07 January 1896
• Citation: 65 N.W. 871,92 Wis. 56
• Parties: GROUNDWATER v. TOWN OF WASHINGTON.
• Court: Wisconsin Supreme Court

92 Wis. 56

65 N.W. 871

GROUNDWATER

v.TOWN OF WASHINGTON.

Supreme Court of Wisconsin.

Jan. 7, 1896.

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

Action by John Groundwater against the town of Washington. Judgment for plaintiff, and defendant appeals. Reversed.

This action was commenced July 25, 1894, to recover damages sustained by the plaintiff April 9, 1893, by being thrown from a wagon, in which he was riding, by reason of an alleged defective highway. The complaint contains the usual allegations in such cases. The answer consists of admissions and denials, and alleges contributory negligence. At the close of the trial the jury returned a special verdict, to the effect (1) that the highway, at the time and place in question, was not reasonably safe for travel; (2) that the plaintiff's injuries were sustained at a water break in the highway (3) at or near the sidewalk, at its east intersection; (4) that the particular defects which rendered the highway unsafe were caused by the water washing away the earth in front of the water break and leaving a ditch; (5) and the plaintiff's injury was caused by such defect, (6) and not by a defect in the seat, (7) nor by the want of appliances to hold the seat firm to the wagon, nor the insecure manner in which the seat was attached to the wagon; (8) nor was the plaintiff or the driver (Gauthier) guilty of any want of ordinary care in relation to the condition of the seat or the manner of its attachment; (11) nor was the plaintiff or the driver guilty of a want of ordinary care in any other respect, which contributed to the plaintiff's injury; (12) that the defendant had notice of said defect; (13) that the plaintiff's injuries were permanent; (14) that $2,500 will compensate the plaintiff for such injuries. From the judgment entered upon such verdict in favor of the plaintiff, the defendant brings this appeal.Wickham & Farr, for appellant.

T. F. Frawley, for respondent.

CASSODAY, C. J. (after stating the facts).

Upon the day named, the plaintiff, two other men, and two children were riding, in a light, two-seated wagon, westerly on the highway in question. The driver and the two children occupied the front seat, and the plaintiff and one Prosper occupied the back seat. There is evidence tending to prove that the back seat rested on good and substantial strips on the inside of the box, belowthe top, in which strips were staples, and on either side of the seat was an iron hook, in the form of a goose neck, and by tipping the hind end of the seat these iron hooks went into the staples, and when the seat set down it was tightened to the wagon; that when they were going up the hill or ascent, the front wheels of the wagon passed over a ridge, or what is called in the verdict a “water break,” and then suddenly pitched forward into a ditch immediately adjacent to the upper side of the water break, throwing the plaintiff forward; and that, when the hind wheels passed over the water break into the ditch, and the front wheels ascended, the plaintiff and Prosper and the back seat fell out of the back end of the wagon, and the plaintiff was injured.

1. Error is assigned because the court refused to direct a verdict in favor of the defendant. The ground of this claim is that the notice required by section 824, Rev. St., and the notice required by section 1339, Rev. St., were both served on the same day; that the notice under the former section was given first, and was inoperative, because the notice under the latter section “was a condition precedent to the right to sue”; and, hence, that the plaintiff had no claim to file until that notice had been given. The difficulty with such contention is that the notice required by the latter section does not create the cause of action, but is merely essential, within the prescribed period, to preserve and continue the cause of action given by the statute for the injury resulting from the defective highway. There was no error in refusing to direct a verdict.

2. We do not think there was any error in refusing to order the plaintiff to produce, on the trial, the seat mentioned, nor in refusing to send the jury to inspect the same. The making of such order and the...