Laird v. Town of Otsego

• Decision Date: 03 April 1895
• Citation: 90 Wis. 25,62 N.W. 1042
• Parties: LAIRD v. TOWN OF OTSEGO.
• Court: Wisconsin Supreme Court

90 Wis. 25

62 N.W. 1042

LAIRD

v.TOWN OF OTSEGO.

Supreme Court of Wisconsin.

April 3, 1895.

Appeal from circuit court, Vernon county; A. W. Newman, Judge.

Action by Rhoda Laird against the town of Otsego to recover damages alleged to have been caused by an obstruction in the highway. Judgment for defendant, and plaintiff appeals. Reversed.

This action was for the recovery of damages against the defendant town for an injury received by the plaintiff while traveling upon and along one of its highways, alleged to be defective and insufficient by reason of the fact that a bridge had been rebuilt by the authority of the town across the highway where it passed along and over an embankment about 14 feet wide and about 2 feet high, and the rubbish, consisting of old planks, pieces of timber, and other refuse matter, had been piled and allowed to remain on the margin and along the side of the said grade in such a manner that the same naturally tended to frighten horses; that while the plaintiff was traveling along said highway in a carriage drawn by a horse and driven by her husband, with whom she was riding, the said horse was frightened at the said planks and rubbish, and shied and became unmanageable, and went down the embankment, overturning the carriage, whereby she was thrown to the ground, and against a wire fence, and one of her limbs was broken, and she was otherwise seriously injured; that her injury was wholly due to the careless and negligent manner in which the defendant had so constructed and maintained its said highway, and without any fault on her part. The answer put the substance of the complaint in issue, and, upon trial before a jury, the plaintiff offered in evidence a notice of her injury to the supervisors of the town, in brief, that she had been injured April 7, 1889, by reason of a defective highway, the same being insufficient, out of repair, and obstructed by reason of old plank having been piled in the traveled part of said highway, one-half mile east of the village of Otsego, in said town, and near to and a little east from the farm house of one Thomas Bowden; that she was riding in a buggy at the time of said injury; that the horse drawing the same became frightened at the planks aforesaid, went down the embankment at the point named, and she was thrown to the ground, etc. Objection was made that the notice did not sufficiently describe the obstruction, and did not identify the place where the accident happened, with sufficient certainty, but the notice was received in evidence. The evidence at the trial showed that on the day in question the plaintiff and her husband had passed the alleged obstruction on their way west to Otsego. That they passed it without any difficulty. That there was a pile of plank and rubbish on the west side of the bridge, and on the north side of the grade, and 12 1/2 feet from the north side of the grade, piled up in a square form, 15 inches high, and the rubbish lay mostly on the back of it, and a piece 8 by 8, 12 feet long, lay on top of it in an oblique position, the end towards the road being rotten. On the east side of the bridge and north side of the grade there were two whole planks and a piece. Some of the plank extended from the grade towards the fence, suitable in muddy weather to walk on up to the grade to cross the bridge. The others lay along the margin of the road, and neither extended into the traveled track. Neither of them was any obstruction to travel, and there was nothing peculiar about them,--were ordinary plank. The grade north of the pile of rubbish on the west of the bridge was 14 inches high, and lower further back. On the south the grade was 3 feet high. On the east of the bridge, where the buggy went off the grade, it was 24 to 26 inches high. The plaintiff and her sister and husband started to go to their home eastward from Otsego, all sitting on the same seat, and when they got within three rods of the pile west of the bridge the horse began to shy to the right. Laird struck the horse on the right side, before coming to the bridge, three or four times. The plaintiff testified: “I could not tell how near the south margin west of the bridge we went, but so near I feared we were going to tip over. We were quite near the side of the bridge, and still he managed to bring the horse a little to the north in crossing the bridge. After the horse crossed the bridge, he saw the planks that were left on the east side of the road, and seemed to take another fright at them, and began to shy to the south side again. * * * The wheel began to go down the bank, and Laird, fearing the buggy would tip over, drew on the right line, so that we would go down straight instead of sidewise.” When the forward wheels went down, her sister fell out on the right-hand side, and Laird was thrown out on the left. The horse turned in a circle, and came up on the grade, and Laird was unable to hold the horse, the lines slipped through his hands, and the horse went diagonally across the grade to the north side, where the plaintiff was thrown out and injured. On cross-examination she said: “As it passed along the east side, the horse seemed to take another fright. It looked at it [the plank], and shied the other way. I suppose that is what he was frightened at. * * * When he saw the other material, it seemed to take another fright.” The plaintiff's sister testified: “As we crossed the bridge she became frightened at these planks on the north side of the grade on the east side of the bridge, and she commenced shying again. * * * I don't think he was whipping her when she passed the bridge. Then she found something else to shy at, and began to shy again.” The evidence was very full on both sides as to the character of the alleged obstructions, and whether they were objects calculated to frighten horses in passing them, and as to the character of the horse for gentleness, and whether he was driven properly on this occasion. There was claim that the roadway was not in itself...