Kortendick v. Town of Waterford

• Decision Date: 05 April 1910
• Citation: 125 N.W. 945,142 Wis. 413
• Parties: KORTENDICK v. TOWN OF WATERFORD.
• Court: Wisconsin Supreme Court

142 Wis. 413

125 N.W. 945

KORTENDICK

v.TOWN OF WATERFORD.

Supreme Court of Wisconsin.

April 5, 1910.

Appeal from Circuit Court, Racine County; A. J. Vinje, Judge.

Action by Henry J. Kortendick against the Town of Waterford. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 135 Wis. 77, 115 N. W. 331.

Action to recover damages for the death of a horse, alleged to have been caused by an injury received through stepping into a hole in a highway. The jury found (1) that the highway was defective; (2) that the plaintiff's horse was injured by reason of such defect; (3) that the defendant had notice of the defect in time to repair the same before the accident; (4) that the injury received was the proximate cause of the death of the horse; (5) that the plaintiff was not guilty of any want of ordinary care which contributed to produce the injury; (6) that plaintiff's damages were $122.50. From a judgment for plaintiff entered on this verdict, the defendant appeals.Kearney, Thompson & Myers, for appellant.

William Sanders and Hand & Hand, for respondent.

BARNES, J. (after stating the facts as above).

The following is a chronological history of this cause: Commenced in justice court in September, 1905; verdict and judgment for plaintiff January 4, 1906, for $135 damages and $54.55 costs; appealed to the circuit court January 16, 1906; judgment of nonsuit in that court October 19, 1906; judgment reversed in this court March 10, 1908; second trial in the circuit court December 4, 1908, resulting in a verdict and judgment for plaintiff for $122.50 damages and $136.39 costs; appeal from the second judgment to this court in April, 1909; continued over the August, 1909, term by stipulation; March, 1910, cases submitted to this court on briefs and oral argument at the bar. The record does not disclose whether or not the litigants or their ancestors came from Missouri. Be this as it may, a stern purpose is evinced to see that justice is administered as far as earthly tribunals are capable of dispensing it. The damages finally recovered are $12.50 less than those originally found. The costs are a mere incident anyway, and the wisdom of the fathers in providing that writs of error should never be abolished has been vindicated. The judge of the Eleventh circuit, who resides in the extreme northwest corner of the state, presided at the last trial in the circuit court. Thus the cause was tried before a judge who was geographically farthest removed from the scene of the conflict, and who presumably was as little liable to have any preconceived opinions or prejudices upon the merits or demerits of the case as any one who could be selected, unless some judge from a foreign jurisdiction were impressed into service. The case in itself was simple and involved the usual controverted questions in actions brought against towns for damages sustained by reason of alleged defects in highways. Nevertheless, it is argued that the trial judge, who we may confidently assume was entirely impartial, committed no less than nine reversible errors during the progress of a short trial.

1. It is urged that before the accident the defendant had repaired the defect testified to by plaintiff's witnesses, and that the fall of the horse was caused by a sudden and unforeseen breaking through of the crust as the horse stepped thereon, and that, therefore, there is no evidence to support the finding that the defendant had actual knowledge of the defect. It appears to us that there is a sharp conflict in the evidence on this point. Two witnesses, Fredrickson and Smatena, located a hole at the place where plaintiff's horse was injured. The pathmaster and the town chairman were notified of its existence about 30 hours before the accident. The pathmaster testified that, after receiving such notice, he examined the place, and that the hole was a myth. He did find a little mud puddle on top of the rock culvert within a few feet of the alleged hole, which, according to his evidence, was entirely innocuous, but which he did repair. Another witness, George Best, testified that the hole was not in existence within less than an hour before the injury occurred. If the evidence of plaintiff's witnesses referred to was true, then the hole which they found had not been repaired and had existed at least from the 25th of March to the evening of the 28th, when the injury occurred. A fair jury question was presented, and the verdict is conclusive thereon.

2. It is next contended that the evidence is insufficient to warrant the jury in finding that the death of the horse was a result of the fall occasioned by its stepping into the hole. The decision on the former appeal (135 Wis. 77, 115 N. W. 331) would seem to be res adjudicata on this point. There was evidence to support the finding. It is true it was expert testimony, but that would seem to be the only kind of evidence by which the cause of the animal's death could be established. A court...