Schillinger v. Town of Verona

• Decision Date: 02 October 1894
• Citation: 60 N.W. 272,88 Wis. 317
• Parties: SCHILLINGER v. TOWN OF VERONA.
• Court: Wisconsin Supreme Court

88 Wis. 317

60 N.W. 272

SCHILLINGER

v.TOWN OF VERONA.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Anton Schillinger against the town of Verona for damages for injuries sustained by reason of a defective bridge and embankment. Judgment for plaintiff, and defendant appeals. Reversed.Olin & Butler and B. W. Jones, for appellant, to sustain the proposition that improper remarks by counsel are ground for reversal, cited: Sullivan v. Deiter (Mich.) 49 N. W. 261; Railroad Co. v. Randall (Ga.) 11 S. E. 706;Moody v. Railroad Co. (Ala.) 13 South. 233;Rudolph v. Landwerlen, 92 Ind. 34;Laubach v. State, 12 Tex. App. 583;Martin v. State, 56 Am. Rep. 817, note; Conn v. State, 48 Am. Rep. 337, note; Hall v. Wolff, 61 Iowa, 559, 16 N. W. 710;Railway Co. v. Cooper (Tex. Sup.) 8 S. W. 68;Union Cent. Life Ins. Co. v. Cheever, 36 Ohio St. 201;Attaway v. Mattax (Tex. App.) 14 S. W. 1017;Koelges v. Insurance Co., 57 N. Y. 638;Paper Co. v. Banks, 15 Neb. 20, 16 N. W. 833;Perkins v. Burley (N. H.) 15 Atl. 21;Newspaper Co. v. Pugh (Ind. App.) 33 N. E. 991.

La Follette, Harper, Roe & Zimmerman, for respondent.

ORTON, C. J.

This is the second appearance of this case in this court, and the facts are sufficiently stated in 85 Wis. 589, 55 N. W. 1040. The plaintiff was driving a two-horse buggy towards the bridge from the north, and when the team had passed up the embankment which formed the approach to the bridge, and about 33 feet on the bridge, they stopped at a wide knothole and crack between the planks, through which they could see the running water in the river below, and commenced backing, and, according to the plaintiff's testimony, the rear wheels had turned to the east, and the buggy went over the embankment just at its connection with the bridge, but, according to testimony on behalf of the town, several feet further down the embankment, and the plaintiff was injured. The embankment at the bridge was ten feet wide, and about seven feet high, but was wider further down, and, of course, the height became less. The jury found that the hole in the bridge was naturally calculated to frighten horses of ordinary gentleness, and that plaintiff's horses were frightened by it, and that the town had notice of it, but they did not find that it was a cause of the accident. The jury found, also, that the insufficiency and want of repair of the approach to the bridge was one of the direct causes of the injury; and the court ruled, as a matter of law, that the approach was in a condition of insufficiency and want of repair. The verdict was $2,000 damages for the plaintiff.

It is to be regretted that this case has to be remanded for a third trial, on account of errors which we deem too material and important to be overlooked.

1. Catherine Meng, a witness for the plaintiff, testified that on Monday morning (the next day after the accident) she went with the plaintiff to the north end of the bridge in a buggy, and stopped a moment to see where the accident happened and how it looked. The witness was asked by plaintiff's counsel “whether the plaintiff pointed out to her the place where he went over the embankment, or not.” This question was objected to, on the ground “that it was immaterial and hearsay.” The court overruled the objection, and the witness answered: “Yes; he pointed out to me where he went over the embankment at the north end of the bridge.” The answer was objected to as improper, and the objection was overruled. This testimony, if it was proper, corroborated the testimony of the plaintiff that he went over the embankment at the north end of the bridge, or within two or three feet from the bridge. The place where the buggy went over the embankment was in dispute and material. The witness was allowed to testify to the statement of the plaintiff of a material fact in the case. This statement was not contemporaneous with the accident, or immediately connected with it, or a verbal part of the res gestae. The ruling was clearly erroneous. Sorenson v. Dundas, 42 Wis. 642;Felt v. Amidon, 43 Wis. 467;Mutcha v. Pierce, 49 Wis. 231, 5 N. W. 486;Prideaux v. Mineral Point, 43 Wis. 513-522;City of Galveston v. Barbour, 62 Tex. 172.

2. The defendant's counsel requested the court to instruct the jury “that the burden of proof is upon the plaintiff to show that the defect existed in the highway in question which caused the injury to the plaintiff, and to further show that the said defect was of such a character, and existed for such a length of time, that the town authorities are presumed to have known of it; and, unless you find that the plaintiff has established these points by a preponderance of proof, he cannot recover, and your verdict should be for the defendant.” This instruction the court refused to give, and defendant excepted. These three facts were material for the plaintiff to prove: (1) The defect in the highway. (2) That such defect caused the injury. (3) That it was of such a character and had existed so long as to imply notice to the town. These issues were presented to the jury in the general instructions, but that these points must be established by a preponderance of proof is not found anywhere in the charge of the court. This is a correct rule of evidence, which the court ought to have given, especially when requested. All the essential points of the case had been severally and ably contested, and it was highly proper that the jury should understand this rule. Bean v. Elton, 44 Ill. App. 442;Railway Co. v. Richey, 43 Ill. App. 247;Gordon v. City of Richmond (Va.) 2 S. E. 727;Watt v. Kirby, 15 Ill. 200; Railroad Co. v. Ayres (Tex. Sup.) 18 S. W. 684.

3. The court instructed the jury as follows: “I have stated in your hearing, upon the facts as disclosed by the testimony, it stands without dispute that this embankment is insufficient and in want of repair; that it is defective, in view of its construction, as to its width and length, and the fact that no railing or guard was placed along the margin thereof, so that, in your deliberation upon the case, you must assume this is a fact.” The fifth question in the special verdict was as follows: “Was the highway forming the approach to the north end of the bridge in a condition of insufficiency and in want of repair?” The court answered this question, for the jury, “Yes.” This was error, for two reasons: (1) It condemns the whole or entire embankment as being insufficient and in want of repair. It was not material to inquire any further than that part of the embankment where the buggy went over it. (2) It was a litigated and disputed question of fact for the jury. The witnesses differed as to the width and length of the embankment, and as to its height. There were many things to be considered by the jury in passing upon this question. Is it certain that it ought to have been wider and longer, and that there ought to have been a railing on each side of the embankment, to make it a safe and suitable highway for...