Rhyner v. City of Menasha

• Decision Date: 16 November 1897
• Citation: 97 Wis. 523,73 N.W. 41
• Parties: RHYNER v. CITY OF MENASHA.
• Court: Wisconsin Supreme Court

97 Wis. 523

73 N.W. 41

RHYNER

v.CITY OF MENASHA.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Winnebago county; George W. Buruell, Judge.

Action by Jacob Rhyner against the city of Menasha. Judgment for plaintiff, and defendant appeals. Reversed.Henry Fitzgibbon, M. M. Schoetz, and Gabe Bouck, for appellant.

Eaton & Weed, for respondent.

CASSODAY, C. J.

This action was commenced October 16, 1895, to recover damages for personal injuries sustained by the plaintiff on the evening of November 15, 1891, by reason of an alleged defective condition of Mills street, in the defendant city. The answer consists of denials and counter allegations; among other things, to the effect that, whatever injury was so received and sustained by the plaintiff, the same was by reason of his own carelessness and negligence, and not by or through the negligence or carelessness of the defendant, and not by or through any defect or want of repair in the street. At the close of the trial, the jury returned a special verdict, to the effect (1) that the plaintiff did sustain the injury at the time and place alleged and claimed by him; (2) that the street at the place of the injury was not in sufficient repair and condition; (3) that the plaintiff's injury was caused by the negligence of the defendant; (4) that the street had been in insufficient repair and condition so long that the defendant should have had knowledge thereof; (5) that at the time of the injury, and some time before, the plaintiff had knowledge of such hole and the condition of such street; (6) that the street was in such condition that the plaintiff, using ordinary care and prudence, could have passed on the same without sustaining such injury; (7) that the plaintiff was not guilty of a want of ordinary care and prudence which in any way directly contributed to the injury; (8) that the plaintiff was not at the time he received the injury so intoxicated as to be incapable of managing and conducting himself with ordinary care and prudence; (10) that, if the plaintiff was entitled to recover, then they assessed his damages at $2,500. From the judgment entered thereon, in pursuance of an order of the court in favor of the plaintiff, the defendant brings this appeal. After careful consideration, we are forced to the conclusion that the case must be reversed for errors intervening upon the trial.

1. The court charged the jury, at the request of the plaintiff, to the effect that the defendant was bound to keep its sidewalks and streets, throughout all their length and breadth, in a reasonably safe condition for the passage of travelers,--young and old,--by day and by night. In Wheeler v. Town of Westport, 30 Wis. 392, it was held that, “to render the town liable, the object causing the injury need not be within the highway, if so connected with it as to affect the safety and convenience of those using the traveled track. But although there be a defect or obstruction in the highway as located, yet if it is not in the traveled part of the road, nor so connected with it as to affect the safety or convenience of those using the traveled path, the town is not responsible for the injury.” In Kelley v. Town of Fond du Lac, 31 Wis. 179, it was held that “towns are not bound to keep highways in a suitable condition for travel in their whole width; and their liability is limited, primarily, to damages caused by defects in the traveled track.” Numerous cases might be cited to the same effect, but it is unnecessary. The nearest approach to an authority for the instruction given now remembered is Matthews v. Town of Baraboo, 39 Wis. 674, where it was held that “a town is liable for defects anywhere in the worked and traveled part of a highway, although the same may be wide enough for three or four teams abreast.” But that case comes far short of sustaining the portion of the charge in question.

2. The court further charged the jury, at the request of the plaintiff, that “the burden of proof is on the defendant, the city of Menasha, to prove contributory negligence, and the fact (if it is a fact) that makes proof on the trial from which you may or may not infer that there was...