McFarlane v. Town of Sullivan

• Decision Date: 08 February 1898
• Citation: 74 N.W. 559,99 Wis. 361
• Parties: MCFARLANE v. TOWN OF SULLIVAN.
• Court: Wisconsin Supreme Court

99 Wis. 361

74 N.W. 559

MCFARLANE

v.TOWN OF SULLIVAN.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by Elliot McFarlane against the town of Sullivan. Judgment for defendant. Plaintiff appeals. Affirmed.

Winslow and Pinney, JJ., dissenting.

W. H. Rogers, for appellant.

Harlow Pease, for respondent.

CASSODAY, C. J.

This action was brought to recover damages sustained by reason of an alleged defective highway. The answer consists of admissions, denials, and alleged contributory negligence. At the close of the trial the court directed a verdict in favor of the defendant upon the ground that the alleged defect in the highway was not the proximate cause of the injury. From the judgment entered thereon the plaintiff brings this appeal.

It appears from the plaintiff's testimony, in effect, that at the time of the accident the plaintiff was 24 years of age, and lived with his father on a farm about two and a half miles south of the village of Rome; that some time after dark on the evening of April 25, 1895, the plaintiff started from his home, to go to Rome, with a gentle mare, between 5 and 6 years old, hitched to a two-wheeled cart; that it was so dark that, as he passed his sister and two ladies within two feet of them he did not recognize them until one of them spoke; that the mare trotted along at her natural gait, until she came to the top of the hill; that he then let her walk down the hill towards the north, because it was rough; that, after he supposed he had passed the rough ground, he spoke to the mare, but, as she did not start to trot, he tightened on his lines with his left hand, and touched the mare with his whip, and she started up quick; that he then pulled on the lines with his left hand, and then the right line came apart, and that, before he had time to speak to the mare to stop her, the left wheel of his cart struck a large stone near the traveled track, and he was thrown out upon his head and shoulders and badly injured; that he held on to the mare until she stepped over the right-hand thill, and broke it, and came near stepping on him, when he let loose of the mare, and she went off with the cart; that he struck the mare just once, and she started quick,--suddenly; that, having both lines in his left hand, he pulled up with that hand, and the right line broke clear in two; that he had the piece that was left in his hand until the mare came near stepping on him, when he let go of it; that when the right line broke, and he pulled, and the pressure came upon the left line, the mare veered to the left, and soon after that his cart struck the stone; that he had known of the stone being there since 1892, but supposed he had got by it,--judging from the distance,--as it was too dark to see it; that the mare did not make but one jump; that the line broke when she started; that after the line broke the wheel struck the stone before he could say “Whoa!” that if he had said “Whoa!” it would not have done any good,--it would not have stopped the mare in that short distance; and that the wheel would not have hit the stone if his line had not broken. It appears that the stone was 3 feet across one way and 3 1/2 the other way, and from 16 inches to about 2 feet above the ground, and from 6 to 10 inches from the west wheel track; that there was about 26 feet clear space of traveled track opposite the stone. The plaintiff was alone at the time of the accident, and the statement made as to the manner of its occurrence is taken directly from his testimony.

We shall assume, for the purposes of this appeal, as the trial court manifestly did, that whether the stone was so near the traveled track as to constitute a defect, within the meaning of the statute, was a question of fact for the jury. We shall also assume that whether the plaintiff was guilty of contributory negligence in striking the mare with the whip, as he did, under the circumstances, was a question of fact for the jury. The right of action is purely statutory. To recover, it must be made to appear that the damage happened “by reason of the insufficiency or want of repair” of the highway. Section 1339, Rev. St. No one claims that this statute creates an absolute liability in every case where such defect contributes to the injury. To be liable, the defect must be the cause of the injury; that is, the proximate cause of the injury. Flagg v. Hudson, 142 Mass. 288, 8 N. E. 42;Cohen v. Mayor, etc., of City of New York, 113 N. Y. 537, 21 N. E. 700;Jackson v. Town of Bellevieu, 30 Wis. 250;Roberts v. Wisconsin Tel. Co., 77 Wis. 592, 46 N. W. 800;Bishop v. Railway Co., 92 Wis. 143, 65 N. W. 733;Salzer v. City of Milwaukee (Wis.) 73 N. W. 20. This court, following Railway Co. v. Kellog, 94 U. S. 474, 475, and former decisions of this court, said in Atkinson v. Transportation Co., 60 Wis. 156, 18 N. W. 770, that: “The primary cause may be the proximate cause of the disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied at the other end, that force being the proximate cause of the movement; or as in the oft-cited case of the squib thrown in the market place. 2 W. Bl. 892. The question always is, was there an unbroken connection between the wrongful act and the injury,--a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was...