Raymond v. Keseberg

• Decision Date: 22 October 1895
• Citation: 64 N.W. 861,91 Wis. 191
• Parties: RAYMOND v. KESEBERG ET AL.
• Court: Wisconsin Supreme Court

91 Wis. 191

64 N.W. 861

RAYMOND

v.KESEBERG ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court. Outagamie county; John Goodland, Judge.

Action by Henry Raymond against Dorothea Keseberg and the city of Sheboygan for personal injuries caused by an obstruction in a street. Judgment for plaintiff, and defendants appeal. Reversed.

For prior reports, see 54 N. W. 612, and 45 N. W. 125.

Plaintiff, while traveling in a top buggy, in the nighttime, on a street of the defendant city, ran onto an obstruction consisting of a mound of earth placed therein by defendant Keseberg, and was injured. He brought this action to recover compensation for such injury. The obstruction was created by dumping into the street the earth taken out by defendant Keseberg in excavating a cellar on her premises. Whether it was properly guarded, so as not to render the street defective and unsafe for public travel by night, was the principal question in controversy. The evidence shows that a red light had been customarily placed on the mound of earth by defendant Keseberg to warn travelers of the danger, and strongly tends to show that it was placed there on the night in question; but whether it was in position at the instant of the accident is a controverted fact, though the evidence strongly tends to show that it was in position a short time before. The defendants asked the court to submit the following questions on the subject of the existence of the light at the place and time of the accident: “(1) Was a lighted lantern maintained on the pile of dirt during the nighttime, up to the night of the accident? (2) Was a lighted lantern placed on the pile of dirt on the evening of the accident?” The court submitted to the jury the following questions: “(1) Was the plaintiff injured by being thrown from the wagon at the time and place mentioned in the complaint? (2) Was such injury caused by the defective condition of the street at the time and place in question for travel upon and over the same? (3) Was such defective condition of the street in question caused by the wrong, default, or negligence of defendant Dorothea Keseberg? (4) Had such defect or obstruction existed for such a length of time prior to the injury that the city of Sheboygan ought to have known of the same, and guarded against it? (5) Was the plaintiff, at the time of the accident, using ordinary care and diligence in traveling along and over the said street? (6) What amount of damage has the plaintiff sustained by reason of the injury?” The court charged the jury, in substance, in respect to the second question, that if there was not a light so placed and of such a nature as to furnish warning to travelers of the danger at the time plaintiff was injured, then the street was defective. The court charged the jury, in substance, in respect to the third question, that, if the street was defective at the time of the accident, such defective condition is chargeable to want of ordinary care on the part of defendant Keseberg. In respect to damages the court gave the following instruction: “He is entitled to full compensation for the bodily and mental pain and suffering which he has endured since the happening of the accident, done to the person, and which he may have to endure hereafter.” The jury answered all the questions “Yes,” except the last, which refers to the subject of damages, and in answer to that awarded $21,800 damages. A motion to set aside the verdict and for a new trial was made and overruled, and proper exceptions were duly taken to raise the questions considered on this appeal.Francis Williams and A. C. Prescott, for appellants.

J. E. McMullen and Barbers & Beglinger, for respondent.

MARSHALL, J. (after stating the facts).

The jury must have understood from the instructions given in respect to the second and third questions that, unless a light was in position at the instant of the accident, so placed and of such a nature as to furnish warning to travelers of the presence of the mound of earth, if the street otherwise would have been defective because of the obstruction, it was their duty to find that it was defective in fact...