Kelley v. Town of Fond du Lac

Dixoh, 0. J. If the court was right in receiving the opinions of the witnesses for the plaintiff as to the unsafety of the traveled tracks, then it was clearly wrong in rejecting the same kind of testimony when offered by the defendant to show their safety. Three witnesses for the plaintiff were asked by his counsel, and, against the objection of the defendant, permitted to state, whether they considered the tracks or road and grade safe or not, and they said they did not; and one of them was also asked his opinion about the safety of the bridge, to which the defendant objected but was overruled, and he replied that he did not consider the bridge safe. Several like questions were put to a witness on the part of the town, calculated to elicit an opinion from him that the highway was not dangerous or unsafe, but these were objected to by the plaintiff and the objection sustained, and the testimony excluded. It is obvious that the rulings of the court could not have been correct in both instances. If right in the former, then they were wrong in the latter; but we think the last correct, and that the error consisted in permitting the plaintiff’s witnesses to testify to mere matters of opinion. The witnesses were not experts, nor was the subject under consideration one requiring especial skill and experience, or the aid of science, in order to be properly examined and understood, unless it might have been the question with respect to the safety of the bridge; and, as to that, the witness under examination was not a mechanic or bridge builder, and so was not qualified to express an opinion. In Reynolds v. Shanks, 23 Wis., 307, which was an action for mason work upon a wall, where the defense was based on the al — 186 — leged unskillful construction of the wall, tkis court after some hesitation held, that a question put on the examination in chief of a witness for the defendant, not an expert, “ What was the condition of the wall at the time you examined it? ”, was a proper question and ought to have been allowed, on the ground that it did not call for the witness’s opinion as to the character of the work, but only for a statement of facts within the knowledge of the witness as to the condition of the wall. The case is clear authority for the position that the questions put and answers received here were wholly inadmissible. The witnesses could only state facts as they knew them with regard to the condition of the highway, and it was for the jury, under the instructions of the court, to draw their own inferences as to whether such condition was an unsafe and dangerous one for travelers or not. So ruled in Ryerson v. Abington, 102 Mass., 531. For this error a new trial must be had in the action. The other errors assigned, which relate to the charge given and the requests to charge refused, will be briefly examined, although it is the opinion of the court that none of them are well assigned. The right of the traveler, when he finds the traveled portion of the highway obstructed, or otherwise unsafe for passage, or in such condition as to create a reasonable belief that it is so, to turn out and seek a passage on either side, when this may be done with reasonable prospect of safety, was correctly stated in the charge, all the propositions of which we believe may be affirmed as sound and unobjectionable in law. The responsibility of towns, without doubt, primarily extends only to losses or damage sustained by reason of defects in the traveled portion of the highway, for they are not bound to keep the highway in its whole width in a suitable or safe condition for travel. It is, in general, the duty of the traveler, therefore, to remain in the traveled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence, if, without necessity or for his own pleasure or convenience, he voluntarily deviates from the traveled track, — 187 — which is in good 'condition, and, in so doing, meets with an accident from some cause outside of the traveled track, the town will not "be responsible for any damage or injury which he may thus sustain. This was so held in Sykes v. Pawlet, 43 Vt., 446. But if the traveled portion of the highway is obstructed or otherwise unsafe or dangerous, thus making it necessary for him to turn out and pass along on one side or the other of it, and he does so, using, in the language of the charge of the court below, ordinary care, and being guilty of no negligence, and an accident happens causing damages to him by reason of some obstruction or defect in the part of the highway over which he is so necessarily passing, he will be entitled to recover against the town for the injury so received. This principle has not to our knowledge been anywhere questioned or denied. The fact that a traveler sees an obstruction or other defect and knows its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person who, in the lawful use of a highway, meets with an obstacle or other cause of insufficiency, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction or insufficiency and all the circumstances surrounding the party. Mahoney v. Metropolitan Railroad Company, 104 Mass., 73; Thomas v. Western Union Telegraph Company, 100 Mass., 157; Horton v. Inhabitants of Ipswich, 12 Cush., 488; Cuthbert v. The City of Appleton, 24 Wis., 383. "With respect to the requests to charge which were refused, it is the opinion of this court that such refusals were proper. The requests ignored entirely the fact, or what the jury might have found as a fact and which should have been submitted for their determination, that the escape and flight of the plaintiff’s horses might have been caused solely by a defect in the highway, the pitch-hole down which the loaded sleigh was precipitated upon the heels of the horses, producing the fright and unmanageableness in which they jerked and broke loose from the sleigh and — 188 — from tbe control of tbe driver, and ran until one of them was killed by collision with tbe trees in tbe highway, distant some sixteen or seventeen rods from tbe place of the accident. Tbe point is made that, because tbe horses bad escaped and were beyond tbe control of tbe driver at tbe time they came in collision with tbe trees and one of them was killed, tbe town is not liable. Tbe point is also made, supposing it to have been tbe duty of tbe town to remove tbe trees, and tbe omission to do so negligence', that tbe trees so left standing in tbe highway were tbe remote and not tbe proximate .cause of tbe injury, which was tbe flight and running at large of tbe horses, and so tbe town cannot be held responsible. In tbe recent case of Houfe v. The Town of Fulton, 29 Wis., 296, this court bad occasion to examine tbe Massachusetts and other authorities upon which counsel rely in support of the first point, and also to consider tbe question whether tbe defect in tbe highway must be tbe sole cause of tbe injury. We there stated, as tbe result of our examination, that tbe fright or uncontrollableness of tbe team, to constitute a defense for tbe town, must be such as is not produced by a defect in tbe highway itself, or tbe presence of any object within it which tbe town, in tbe exercise of reasonable care and prudence, is bound to remove, on account of its natural tendency to frighten horses and thus cause mischief and injury to trav-ellers. We believe we were correct in this statement of tbe principle governing tbe Massachusetts decisions; but whether we were precisely so or not, we are certainly not disposed to go further in tbe application of it. If, without negligence or with no want of ordinary care on tbe part of tbe driver, who is a safe and competent person to have tbe management of a team, it becomes frightened and unmanageable or escapes from bis control by reason of any defect in tbe highway, and, under tbe fright or impulse so caused or given, runs away and injures or destroys itself or tbe carriage or vehicle, or injures tbe person of tbe driver or other person traveling with him, in that case it is tbe opinion of this court that tbe town is liable, and must re — 189 — spond in damages for tbe injuries so caused and sustained. It was expressly so adjudged witb respect to an object within the limits of the highway, but outside the traveled part, which was naturally calculated to frighten horses of ordinary gentleness, in the case of Foshay v. Glen Haven, 25 Wis., 288, following the case of Morse v. Richmond, 41 Vt., 435, and authorities there cited. If fright and injury from such a defect be actionable against the town, it is scarcely necessary to remark that fright and injury from any other defect calculated to produce them, and which does produce them, if the jury shall so find, lilce the pitch-hole in the present case, will also be actionable. And as to the other point, that the trees standing in the highway were the remote cause of the injury complained of, enough has already been said to show, if they were so, that the town must still be held liable in case the jury shall find that the escape of the horses was caused by the defect in the highway at the place of such escape. In that case, such defect in the highway is to be regarded as the proximate and continuing cause of the injury, which was all one cause or event from the time the horses took fright and escaped until one of them was killed, with no new or other independent and sufficient cause intervening to which the injury could be attributed. In this view, the defect in the road at the place of escape, being found by the jury to have been the cause of the escape and consequent injury, is to be deemed the primary and only efficient cause, and the trees, whether negligently left standing within the limits of the highway or not, are not in any proper sense to be looked upon as a cause. Upon this subject the case of Hodge v. Bennington, 43 Vt., 451, will be found in point, that the descent into the pitch-hole, the hitting of the load of wood against the heels of the horses, their fright, jerking and breaking away, and running and collision with the trees whereby one was killed, though made up of parts and embracing many incidents, are nevertheless to be — 190 — considered as essentially but one occurrence or transaction, constituting a single and indivisible cause of action. By the Court.— The judgment is reversed, and a venire de novo awarded.