McCabe v. Town of Hammond

Lyon, J. The statute makes it the duty of overseers of highways, whenever any portion of the highways in their respective districts is rendered impassable by snow drifts, “ to call out, upon one day’s notice, the tax payers of said districts, and immediately put said part or parts of said highways in passable order.” Laws of 1864, ch. 343 (Tay. Stats., 487, § 45). The statute contains other provisions prescribing the powers and duties of the overseers when it is impracticable to remove the drifts, but these have no application to this case. Compliance with this statute will relieve the town from all liability to pay damages caused by snow drifts. A failure to comply therewith is negligence on the part of the town. In this case, therer fore, if sufficient time elapsed after the drift was formed and before the plaintiff was injured, for the proper overseer to have removed it by employing to that end the means provided by the statute, the town is guilty of negligence, and has failed in ..the performance of its duty in that behalf. The proper overseer was chargeable with notice that the effect of the storm was to produce drifts in the highways in his road district. He knew the violence of the wind, and the quantity of snow which fell during, the continuance of the storm, and, by the exercise of a very little judgment, he might have formed a correct opinion of the effects which would naturally follow those causes; and' it was his manifest duty to ascertain where the highways were obstructed by the snow, and .to take steps to remove the drifts. , Under the statute, it was the duty of the overseer, within a .reasonable time after the snow ceased to drift, to call out the tax payers of his district in the manner' prescribed in the stat,- [593] ute, and to remove the drift which was the cause of the injury to the plaintiff. The juryare to determine, from all the circumstances of the case, when the notices to such tax payers should have been given. If, in the exercise of reasonable care and diligence in giving such notices, the drift could have been removed before the plaintiff was injured, the town is chargeable with neglect of duty. Otherwise the town is not liable in this action. Hence, in order to determine whether the town was negligent, we must inquire whether the drift would have been removed before the time when the plaintiff was injured, had the proper overseer used reasonable care and diligence to remove it by employing for that purpose the means which the law placed at his disposal. As before stated, this is a question for the j ury to determine, upon due consideration of all the facts in the case. The question of reasonable care and diligence is> therefore involved in the issue; and it results therefrom that the following instruction given to the jury at the request of the plaintiff cannot be upheld: “ The town is held to a strict performance of its duty, and will not be relieved from, its liability by showing ordinary care." This is a material error, and fatal to the judgment. It is true that the court, afterwards, at the request of counsel for the defendant, gave the jury correct instructions on the same subject; but that did not cure the error. We cannot say that the jury disregarded the first and erroneous instruction, and based their verdict entirely upon the last and correct one. The rule sanctioned and acted upon by this court is, “Where erroneous instructions are given for one party, the error is not corrected by giving for the other party instructions explanatory of, inconsistent with, or contradictory to, those first given.” Imhoff v. The Chicago & Mil. R’y Co., 20 Wis., 344. See also Hopkins v. Langton, 30 id., 379. It is not deemed necessary to determine the other questions discussed on the argument. [594] By the Court.— The judgment of the circuit court is reversed, and a venire de novo awarded.