Parish v. Town of Eden

• Decision Date: 03 February 1885
• Parties: PARISH, ADM'R, ETC., v. TOWN OF EDEN, IN IOWA COUNTY.
• Court: Wisconsin Supreme Court

62 Wis. 272

22 N.W. 399

PARISH, ADM'R, ETC.,

v.TOWN OF EDEN, IN IOWA COUNTY.

Supreme Court of Wisconsin.

Filed February 3, 1885.

Appeal from circuit court, Iowa county.

This is an action brought by the plaintiff as administrator of William Parish, deceased, under the statute, (Rev. St. 1020, §§ 4255, 4256,) to recover damages resulting from the death of the intestate, alleged to have been caused by the insufficiency and want of repair of a public highway in the defendant town. The death occurred during the night of August 21, 1880. The summons herein was served April 13, 1883. It is unnecessary to set out the pleadings; sufficient reference to them will be found in the opinion. The following statement of facts is taken from the brief of counsel for the town. A few necessary corrections have been made therein, but none of them are regarded as very important. The statement is as favorable to the town as the evidence will justify.

The facts are substantially as follows: In the summer of 1880 the Chicago & Tomah Railroad Company (now the Chicago, Milwaukee & Northwestern Railway Company) was grading its road-bed through the defendant town. The main thoroughfare passing through the town is a highway running in an east and west direction, known as the military road. It is four rods in width, and built through a level prairie country. At the point where the accident happened the railroad had been located running diagonally across this highway from north-east to south-west, the angle of intersection being 13 degrees, so that the railroad runs 319 feet in crossing the highway. On the north side of the highway the railroad has a grade of about one foot, which changes as it passes to the south side to a cut which, at the south limits of the highway, is two feet six inches in depth.

The accident happened Monday night, and it is conceded that up to the Saturday preceding, when the railroad hands commenced work at this point, the highway was in perfect condition. While the hands were at work at this point, Saturday, J. B. Johnson, road overseer of the road-district, and who lived two and one-half miles west on the same road, came along, and noticing the uneven condition of the highway, called upon the engineer in charge to have the highway leveled off. This the engineer agreed to do, and called his men and set them at work leveling off the road in the highway, and Mr. Johnson went on home, leaving them at work. Mr. Johnson was not over the road again until after the accident, and had no other notice of the condition of the highway.

The father of deceased, and with whom he resided, was a farmer and miner, living at Centerville, about 20 miles from Mineral Point city. Deceased was, at the time of his death, nine years and four months old, and his brother Renwick, (who was killed at the same time,) was eleven years and six months old. Renwick had been working around home, plowing corn, teaming, etc., during that summer with a team of gray horses belonging to his father; had hauled ore some to Mineral Point, but whether he had ever been before in the night-time, the evidence does not disclose. The day before the accident, it rained, and the night was cloudy and dark. The day before the accident the oldest boy, Renwick, told his father he had got a load to take to Mineral Point, and wanted to go in that night, to which his father assented. The boy William went along to see the place, as he had never been there before, and begged to go. The father of deceased had lived all his life near Centerville, and knew the character of the road from that place to Mineral Point. He says of the road: “From the time you leave Centerville till you struck the military road, near Cobb, it was a rough, hilly, sideling road, narrow in some places, and some not; some places teams could not pass one another.”

These boys started out some time after sundown on the night of August 2d, to pass over this road with a load of zinc ore, to go 20 miles on country roads to the city of Mineral Point. Between 9 and 10 o'clock they were heard passing the house of William Pettis, a farmer living about a mile and a half west of the place of the accident. He heard them putting on the brake. About 2 o'clock in the morning their team was found standing in the railroad cut on the south side of the highway, at the point before described, still attached to the wagon, which was completely capsized with its load, and the boys underneath. They were found by two teamsters, nearly opposite the residence of A. N. McCrady, and they being unable to find the driver called up Mr. McCrady's boy with a lantern, when they found one of the boys under the load, but could not see the other as he was completely covered with the wagon and its contents, and they had no knowledge of his presence. Of the boy found, simply one leg was out from under the wagon, and they felt of this and found it cold, and, being satisfied that he was dead, they unhitched the horses from the wagon and put them in McCrady's barn, and the teamsters went on to Mineral Point, leaving everything else undisturbed. In the morning the wagon was removed, and the boys were found lying side by side between the bottom of the seat and the load of jack, both partly wrapped in robes and blankets, their faces towards the front end of the box. The oldest boy lay partially bent up, and had one hand bent as if clasping the reins. The testimony is conflicting as to whether the team was in the traveled path of the road at the time of the accident or not. When the wagon reached the cut it did not go straight down the bank, but the front wheel dropped partially in and dragged along on the bank for a few feet until the hind wheel dropped into the cut, and then the wagon tipped over. There were marks on the side of the cut to indicate that the off horse had struggled along on the bank for a few feet before going into the cut. The evidence was quite conflicting as to the condition of the highway, and as the verdict of the jury is decisive on that question, on this appeal nothing need be said concerning it.

Deceased being but nine years old at the time of his death, of course left no wife nor lineal descendants, but left, him surviving, his father, Henry F. Parish, and his mother, Alice Parish. On the sixteenth of August, 1880, a notice, as required by section 1339, Rev. St., was served upon a supervisor of the defendant town, which notice was signed by the father of deceased and his attorney, and stated that he, the father, claimed satisfaction from said town of Eden, for the loss of his sons, but no such notice was ever served on behalf of the mother of deceased. This notice was introduced in evidence against defendant's objection. The attempted appointment of plaintiff, as administrator of the deceased son, was made April 19, 1881, and on the fourteenth day of July, 1882, the plaintiff, as administrator, presented to the town clerk of the defendant town, to be filed in his office, a written claim for damages, with a written request that it be presented and laid before the town board of audit. The boy was killed August 21, 1880, and this action was commenced April 13, 1883, and the two-years statute of limitations is pleaded in bar of the action. A special verdict was demanded by the defendant and returnd by the jury. The same consists of the following questions submitted to the jury, and their answers thereto:

“(1) Did the accident, which resulted in the death of the boy, William Parish, occur within the limits of a public highway in the defendant town? Yes. (2) Was the highway at the place of the accident insufficient? Yes. (3) Was the accident that resulted in the death of the boy, William Parish, caused by a defect or insufficiency in a highway of the defendant town? Yes. (4) Had the authorities of the defendant town actual notice of the defect in the highway before this accident, or had the defect existed for such a length of time that they must have known of it? Yes. (5) If you find that the town authorities knew of such defect, or must have known of it, then answer this question: Had they reasonable time after such knowledge or notice to repair such defect, or to warn travelers against it before this accident? Yes. (6) Was the father of William Parish negligent in permitting him to go to Mineral Point the night of the accident with his brother, Renwick? No. (7) Was the boy, Renwick Parish, at the time of said accident, exercising ordinary care in managing and driving the team? Yes. (8) Was the plaintiff duly appointed the administrator of the estate of said William Parish, deceased, before this action commenced? Yes. [Answer directed by the court.] (9) Was the notice and claim for damages required by section 1339 of the Revised Statutes given to a supervisor of the defendant town within ninety days from the happening of the accident which resulted in the death of William Parish? Yes. [Answer directed by the court.] (10) Did the plaintiff file, or cause to be filed, in the town clerk's office of the defendant town, a statement of his claim for damages as such administrator on account of the death of said William Parish, to be laid before the town board of audit of said town of Eden, as required by section 824 of the Revised Statutes, and was this action commenced after ten days after the next annual town meeting of said town thereafter? Yes. [Answer directed by the court.] (11) If you answer questions 1, 2, 3, 4, 5, 7, 8, 9, and 10, by writing ‘yes' after them, and question No. 6 by writing ‘no’ after it, then you will answer this question: What amount of damages do you find the plaintiff should recover from the defendant town? Thirteen hundred dollars.”

The court denied a motion for a new trial, and judgment for the plaintiff was rendered pursuant to the verdict. The defendant appeals from the judgment.

Lanyon & Spensley, for respondent.

Aldro Jenks, for appellant.

LYON, J.

1. The complaint avers that the...