Wiltse v. Town of Tilden

• Decision Date: 21 June 1890
• Citation: 46 N.W. 234,77 Wis. 152
• Parties: WILTSE v. TOWN OF TILDEN.
• Court: Wisconsin Supreme Court

77 Wis. 152

46 N.W. 234

WILTSE

v.TOWN OF TILDEN.

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Chippewa county; R. D. MARSHALL, Judge.

This is an action for damage by reason of the death of the plaintiff's intestate, caused by a defective highway. It appears from the record that the Bloomer road runs northerly from Chippewa Falls; that upon that highway, and about six miles north from Chippewa Falls, the Cook's Valley road, so called, branches off, and runs in a north-westerly direction to a place called “Cook's Valley;” that about 80 rods from the Bloomer road the Cook's Valley road crosses what is known as “Duncan Creek,” which at that place comes down on the north-easterly side of that highway, and then crosses to the southerly side of the same, and runs for some distance along that side of it, and then turns, and runs nearly south; that in a high stage of water that creek spreads out over considerable portions of the Cook's Valley road; that between Chippewa Falls and Cook's Valley there was a stage line which carried the United States mail; that one Whittemore had driven that stage during the summer of 1887; that he was again employed in April, 1888, and started on his first trip from Chippewa Falls about 20 minutes after 7 o'clock on the morning of April 28, 1888, with a single seated buggy, taking with him, as his only passenger, Kate Wiltse, the intestate, a girl between 16 and 17 years of age; that it was a stormy morning, raining most of the time. Whittemore testified to the effect that he was, at the time, upwards of 20 years of age; that he had earned his own living since he was 12, working about the woods, on the river, and driving livery, stage, etc.; that he reached Duncan creek about 9 o'clock of the morning mentioned; that as he drove down the hill towards the creek he looked across, and could see the bridge all right, about two feet above the water in the creek; that the land between him and the bridge was considerable lower than the bridge; that the water was running over the road in such low portions; that from the looks he thought it was all right; that he drove right along a little ways, and then went out and unchecked the horse, so he could drink; that he started along and drove the horse into the water, where at first it was a little above his ankles, and then he went along until the water got pretty near up to his knees; that there then seemed to be a kind of hill, and the horse stopped, and then started, when the water was about to his ankles again and dirty; that the girl then said, “I guess we are all right now;” that he replied that he guessed so; that “just then the horse went right off in on his head;” that the “hole was right in the center of the traveled track, and some two or three rods fromwhere we first drove into the water;” that the bridge was some four to eight rods be yond the hill; that “we went right off into the hole on the plunge, and swung right around to the left, and tipped the buggy over;” that he caught the girl with his left hand, and they both fell out of the buggy at the same time; that he could not tell the depth of the hole, but that it was something like six or eight feet; that he swam with the girl a little piece, and then went under the water; that when he came up they were about six feet out from the shore; that he caught the bush with his right hand, and then turned around and went under the water, and came up eight or ten feet below, and that was the last he saw the girl before she was dead; that half an hour after the accident the water in the creek was two or three feet higher than when he first drove into it; that after going to Chippewa Falls, and returning, and between 1 and 2 o'clock of the same day, the water was five or six feet deeper than at the time of the accident. Thereupon the plaintiff was appointed administratrix of the estate of said deceased, and commenced this action to recover damages by reason of the girl's death. The complaint is in the usual form in such cases. The answer denies the...