Redepenning v. Town of Rock

• Decision Date: 29 September 1908
• Citation: 117 N.W. 805,136 Wis. 372
• Parties: REDEPENNING v. TOWN OF ROCK.
• Court: Wisconsin Supreme Court

136 Wis. 372

117 N.W. 805

REDEPENNING

v.TOWN OF ROCK.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by Fred Redepenning against the town of Rock. From a judgment for plaintiff, defendant appeals. Affirmed.

July 30, 1903, plaintiff received personal injuries, alleged to have been caused by a defective highway in the town of Rock, Wood county. Plaintiff was engaged in hauling wood over the road. The wagon wheel ran into a rut, or hole and gully, estimated at from one to two feet deep, causing one of the stakes holding the cordwood on the rack to break and the wood to fall. The horses became frightened, unmanageable, and ran. Plaintiff fell off the wagon and under the wheels of the wagon, which broke and crushed his leg and caused serious personal injuries. The notice of injury which was served upon one of the officers of the town contains the following description of the place of injury: “On the afternoon of the 30th day of July, 1903, I was driving and riding in a two-horse wagon loaded with cordwood drawn by a span of horses at the public highway in said town which runs north between sections 32 and 33, in township twenty-four (24), north of range two (2) east, about sixty rods north of the north line of the town of Cary, and while passing that part of the said highway, about sixty rods north of the north line of the town of Cary, in the exercise of due care, in the traveled path of said highway, the wheels of my wagon ran into a deep rut or gully.” This notice is alleged to be defective and misleading, in that the place of accident, as shown by the evidence in the case, was not the same as that fixed by this notice of injury. There is evidence tending to show that the place of accident was about 55 rods from the town line, and some evidence that it was 63 rods from the line, instead of the 60 rods stated in the notice. There was evidence in the case tending to show knowledge on the part of the supervisors of the condition of that road, that they were not in fact misled by the alleged insufficiency of the notice of injury, and that the defects in the highway had existed for a sufficiently long time before the accident to enable the town in the exercise of reasonable care and diligence to have removed the defects. The jury returned a special verdict, finding that the injuries were due to the defective and insufficient condition of the highway, that the town had notice thereof a sufficient length of time before the accident to enable it in the exercise of reasonable care and diligence to remove it, that the defects were the proximate cause of the injuries, that plaintiff was not guilty of any want of ordinary care proximately contributing to the injuries, that the officers of the defendant town were not in fact misled by the notice of injury as to the place of accident by any inaccuracy in describing the place of accident and the injury with sufficient particularity. The jury also fixed plaintiff's damages. Errors are alleged on this appeal as to the reception and rejection of evidence, as to the instructions of the court and the refusal to submit proposed questions in the special verdict, as to the refusal of the court to change certain of the jury's answers in the special verdict, and as to the refusal of the court to set aside the verdict and to grant a new trial. This is an appeal from the judgment on the verdict.Geo. L. Williams, for appellant.

B. R. Goggins and D. D. Conway, for respondent.

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

The appellant alleges numerous errors. We, however, deem it sufficient for the disposition of this case on appeal to treat only those which were discussed in argument.

It is urged that the notice of the injury is defective, in that it fails to describe the place of injury and the nature of the defect in the highway with sufficient particularity. The place is located as about 60 rods north from the north line of the town of Cary. The evidence varies somewhat as to the exact distance of the place of accident from this town line. There is evidence that the distance is about 63 rods, and some that it is about 55 rods. The point located by the notice is between these extremes. This would warrant the jury in concluding that the notice gave the distance as substantially correct.

It is also asserted that the insufficiency is so indefinitely described that the town officers could not ascertain therefrom what defect plaintiff relied on as having caused the injury. The insufficiency is described as consisting of “a large number of deep rut holes and a large number of roots and stones.” There is evidence tending to show that the highway at the place of accident was gullied or washed out across the traveled track, that there was a rut or hole in this “gully,” and that there was a large stone near the edge of the traveled track, near this gully and the rut or hole. These conditions are of the kind described in the notice, and describe the nature of the insufficiency complained of with sufficient particularity. But, if the notice were actually defective as alleged by appellant, yet no cause for complaint exists upon this ground, because the jury...