Simonds v. City of Baraboo

• Decision Date: 14 April 1896
• Citation: 67 N.W. 40,93 Wis. 40
• Parties: SIMONDS v. CITY OF BARABOO.
• Court: Wisconsin Supreme Court

93 Wis. 40

67 N.W. 40

SIMONDS

v.CITY OF BARABOO.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action by Orson Simonds against the city of Baraboo for injuries sustained by reason of a defective street. Plaintiff had judgment, and defendant appeals. Reversed.

This action was to recover compensation for personal injuries alleged to have been received by plaintiff because of a defective and insufficient street in the defendant city. About eight feet of one of the beveled planks on the outer edge of a cross walk in the traveled portion of the street had been broken out so as to leave a drop of about eight inches from the top of such cross walk at the surface of the street at that point. Plaintiff approached such crossing from the side opposite the defect, driving a span of horses drawing a wagon loaded with block wood; the sticks, about sixteen inches long, piled crossways about two feet high on the wood rack, with a loose board bottom and side boards, but with no support at the ends. He was seated on top of the wagon, two or three feet from the front end, with his feet upon the load. He could not see the defect as he approached it until too late to stop his horses. He had seen the defect about a week previous, but did not think of it at the time in question. The horses passed over the crossing at a walk. As the front wheels of the wagon dropped, part of the front tier of wood fell off, striking the horses, and causing them to run, and by reason of the fall of the wood, and the tendency of other wood to fall, plaintiff was unable to manage the team, and in his effort to do so he slid off the load onto the tongue, and from there to the ground, breaking his arm, and inflicting other bodily injuries upon him. Verdict was rendered in his favor. Exceptions were taken raising the questions here considered. Judgment was rendered in his favor, from which this appeal was taken.R. D. Evans, for appellant.

Bentley & Bentley, for respondent.

MARSHALL, J. (after stating the facts).

The plaintiff testified that he knew, prior to the accident, of the existence of the defect, and, based on such evidence, a motion was made at the close of plaintiff's case for a nonsuit. It is insisted here that the denial of such motion was error, citing Beach, Contrib. Neg.; Bruker v. Town of Covington, 69 Ind. 33;Gilman v. Inhabitants of Deerfield, 15 Gray, 577. Beach lays down the rule (section 12), in effect, that where one knows the danger, but temporarily forgets it, and in consequence suffers an injury, his forgetfulness will not avail him as an excuse; that what he knows he must remember at his peril, and that a failure to remember constitutes contributory negligence if it occasions injury. But this is not supported by reputable authorities anywhere, and has been expressly repudiated by this court. Wheeler v. Town of Westport, 30 Wis. 392. No stronger case, probably, can be found to support the text in Beach than Gilman v. Inhabitants of Deerfield, supra. There plaintiff was well acquainted with the defect. He had passed over it several times within a short period prior to the accident. The last time he observed its character particularly, and so fully appreciated the danger that he deemed it necessary to drive over the defect at a walk, and with care. It was so situated as to be in plaintiff's view for several rods before he reached it. His horse was a quick, high-spirited animal, accustomed to start quickly. He approached the defect on a trot, going at the rate of five or six miles an hour, so carelessly that he could not afterwards remember whether he was driving with a slack or tight rein. He was a doctor, on the way to visit a patient, and his thoughts were on that business. He did not think of the defect in the road till it was too late to stop his horse. Held, under these facts, that failing to remember constituted contributory negligence as a matter of law. Yet in Wheeler v. Town of Westport, supra, this court held that the Massachusetts court in that case “carried the doctrine of forgetfulness of the existence of a defect or obstruction as conclusive evidence of contributory negligence to the very extreme of reason and sound policy,” and, as there shown, that court has not extended the rule, but has often since held that previous knowledge was not of itself conclusive evidence of contributory negligence. In fact the rule of Gilman v. Inhabitants of Deerfield has been so fenced in by subsequent decisions as to be practically overruled. Whittaker v. West Boylston, 97 Mass. 273;Smith v. Lowell, 6 Allen, 39;Blood v. Tyngsborough, 103 Mass. 509;Brigham v. Worcester Co., 147 Mass. 446, 18 N. E. 220. To the same effect are Weed v. Village of Ballston Spa, 76 N. Y. 329;Bassett v. Fish, 75 N. Y. 303; Driscoll v. Mayor, etc., of New York, 11 Hun, 101; Dorsey v. Construction Co., 42 Wis. 583;Cuthbert v. Appleton, 24 Wis. 383. In this case the...