Seaver v. Town of Union

• Decision Date: 18 February 1902
• Citation: 89 N.W. 163,113 Wis. 322
• Parties: SEAVER v. TOWN OF UNION.
• Court: Wisconsin Supreme Court

113 Wis. 322

89 N.W. 163

SEAVER

v.TOWN OF UNION.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Appeal from circuit court, Waupaca county; Chas. M. Webb, Judge.

Action by Frank Seaver against the town of Union. From a judgment for plaintiff, defendant appeals. Reversed.

Action to recover compensation for a personal injury alleged in the complaint to have been sustained under the following circumstances: On January 19, 1900, one of the public highways in the defendant town was insufficient at a point particularly described, in that, for a distance of about 100 feet south and about 600 feet north of such point, the traveled part thereof was worn down by travel and by the washing of surface water to a depth of from 10 to 20 inches, forming a narrow channel or cut to which the travel was confined, the cut not being of sufficient width to allow teams to pass by each other without one or both turning out partly upon the embankments on either side of the road bed. Such condition had existed for more than six months prior to the particular date mentioned and was well known to the officers of the town. On said day, while plaintiff was traveling south on said road, driving a span of horses drawing a sled upon which was loaded a saw frame and some pieces of machinery, he met a team of horses drawing a loaded pair of bobsleds, traveling north, which team was turned by its driver to its right in an endeavor to surrender, so far as practicable, one-half of the traveled part of the way to plaintiff. There was not room enough for the teams to pass, which compelled plaintiff to turn his team so as to entirely clear the traveled part of the road with his sled. After the teams passed each other it was necessary, in order for plaintiff to continue on his journey, to turn back into the traveled track, and while he was in the act of doing so, and was in the exercise of ordinary care, and wholly by reason of the insufficient condition of the highway as indicated, his sled and load thereon were overturned in such a manner as to fall upon his right arm and crush it, and otherwise inflict upon him severe bodily injuries to his damage in the sum of $5,000.

All the facts necessary to fix the liability of the town to compensate plaintiff for his injury, and to enable him to prosecute this action, were alleged. The answer put in issue the allegations as to the highway being insufficient, and as to the injury to plaintiff having been caused in the manner alleged by him, and set up contributory negligence as a defense.

The evidence established or tended to establish the following as facts: For a considerable distance both ways from the point where plaintiff was injured, the traveled part of the highway was in a cut, not much wider at the bottom thereof than the space occupied by an ordinary wagon. A person coming from the north, after he reached a place 250 feet from where the accident occurred, could all the time thereafter, as he approached said point, see a team coming from the south at any place within a distance of 200 feet south of such point. The last safe turn-out place to the right, for a person coming from the north, as he approached where the accident happened, was about 200 feet from such point. There was a side road east of the main track, which connected with the latter at a point about 125 feet north of the place of the accident and 80 feet south thereof. Except where the turn-out places were located as stated, for the whole distance referred to there was a bank on the east side of the main track, which sloped upward from near the wheel track to such a height that a person could not turn from the main track with a team, drawing a loaded sled, sufficient to allow another such rig to pass, without considerable danger of his load being turned over. Especially was that the case if the person was drawing a top-heavy load. If a person so circumstanced succeeded in turning out so as to allow a team coming from the opposite direction to pass by him, he had to encounter again the danger of overturning his load in the act of trying to regain the traveled track. Plaintiff was familiar with the situation, having traveled over the road many times. There was some new snow on the ground the day the accident happened, and the conditions were such that, in attempting to turn out of the track with a loaded sled to allow a person coming from the opposite direction to pass, the sled was liable to slide toward the track and obstruct it so as to prevent the teams from passing unless one of the sleds was drawn substantially clear from the track and upon the side or top of the bank. Plaintiff and an associate passed over the road going north a short time before he was injured. He had a team of horses hitched to a pair of bobsleds of the ordinary width, the bolsters extending out about as wide as the wheel tracks of a wagon. There was no box on the bolsters, but there was a platform made of planks, the top of which was about 21 inches from the ground. The accident happened in the daytime. There was not enough snow to make good sleighing. The purpose of plaintiff in going north was to get a saw frame, which weighed about a ton. It was loaded on the platform of the sled just in front of the hind bolsters, the greatest length of the frame being crosswise. It extended beyond the sides of the platform each way about 14 inches. The greater part of the weight of the machine was in the top, which was about 4 feet from the ground after the machine was loaded. It was secured in place on the platform by chains. After it was so secured plaintiff proceeded south and entered that part of the road which was in the cut and has been described. Before he reached the last place where he could turn out to his right as before stated, a team drawing a pair of bobsleds with a load thereon was in plain view, coming from the south. At this time neither driver observed the other or paid any attention to whether he was approaching another team. The driver of the team coming from the south did not see that any one was approaching from the north till he had passed beyond the place where the side road turned off to his right. Plaintiff did not observe that the team was approaching from the south till he had passed by where such side road turned off to his left. Each had ample opportunity to see the other before passing by where he could have turned into the east track. From the point where plaintiff observed the team coming from the south to where the teams met there was no place where either team, particularly plaintiff's, could be safely turned out to allow anotherto pass by. As the teams came near together, each driver endeavored to turn his team to the right so as to surrender one-half of the traveled track. Plaintiff wholly or nearly succeeded in his effort in that regard, but as the teams attempted to pass each other, the hind bob on the sled from the south swung around and obstructed the way, so he was unable to proceed without turning entirely out of the track, or the driver of the other team doing so, which could not be done, as before indicated, without considerable danger. Plaintiff concluded that it was easier for him to turn his team out upon the bank than for the person coming from the south to do so, and he acted accordingly, succeeding in safely clearing the road and reaching the top of the bank. After going about 50 feet, and after the team from the south had passed by, he endeavored to regain the traveled track, selecting a place where it seemed to him possible to do so. As his team reached the traveled track they turned south therein, and as his sled passed over the brink of the bank it slid toward the edge of the track, and as it reached the track it dropped down into it, stopping suddenly in the side movement and causing his load to overturn. In some way, as the edge of the saw table came in contact with the ground, plaintiff's arm was caught under it and crushed, and he was severely injured. There was considerable conflict in the evidence as to the exact width of the cut at the bottom, and as to heights and distances, and the manner in which plaintiff's arm came to be caught under the edge of the saw table as the load was overturned.

At the close of the evidence appellant's counsel moved the court to direct a verdict of no cause of action, which motion was denied, and due exception was taken to the ruling. The jury rendered the following verdict:

Question 1: Was the plaintiff injured by the upsetting of his sleigh, and load thereon, at the place in the highway described in the complaint?

Answer: By the Court. Yes.

Question 2: What was the depth, expressed in inches, of the depression in the traveled track where plaintiff was injured?

Answer: 16 inches.

Question 3: What was the depth, expressed in inches, of the depression in the traveled track where plaintiff turned out of the same?

Answer: 13 inches.

Question 4: Was there, upon the east bank of the highway, extending north from about the bend in the highway, as shown upon Exhibit C, a traveled track, reasonably safe for public travel?

Answer: No.

Question 5: If you answer question 4 “Yes,” then what was the distance from the south end of said traveled track on the east side of the highway north, to the place where the same again first joined the so-called main traveled track?

Answer:

Question 6: Could a person in the highway, 250 feet north of the place of the accident, and thence traveling south along the same to the place of the accident, at all times see a team at any place in said highway not more than 200 feet south of the place of the accident?

Answer: By the Court. Yes.

Question 7: How far north of the place where plaintiff turned out on the traveled track was it to the first place where the plaintiff might have, with reasonable safety, turned out on the west side of the highway, so as to have permitted Marcey to pass with safety?

Answer: 144 feet.

Question 8: How far north of...