Matthews v. Town of Baraboo

RyaN, C. J. The complaint, before amendment after verdict, charged the defect of the highway, and the resulting accident, to a rock or stone. Witnesses attributed the accident to a stone and to a rut; some to the one, some to the other, and some to both. All this testimony was taken without objection; no exception whatever to evidence appearing in the bill of exceptions. This no.t unnaturally led the learned judge of the court below to think the complaint broad enough to cover both stone and rut; and so he charged the jury. The variance between the jdeading and the proof appears not to have been pointed out to him, until after verdict; the exceptions to the charge being taken, under the statute, during the term, but after the jury had been discharged. [677] Had tbe question of variance .been raised on tbe trial, by objection to evidence- of tbe rut, it would bave been tbe duty of tbe court below to bave permitted tbe respondents to make the amendment before verdict, which was actually made after verdict. Fobes v. School Dist., 10 Wis., 117; and numerous other cases cited by Dixon, C. J., in note to Brayton v. Jones, 5 Wis., 627. Tbe question of variance, not having been raised on tbe trial, was waived by tbe appellant, and cannot be raised after verdict. Gee v. Swain, 12 Wis., 450; Gardinier v. Kellogg, 14 id., 605; Mead v. Bagnall, 15 id., 162; and numerous other cases cited in tbe note to Brayton v. Jones; Flanders v. Cottrill, 36 Wis., 564. And this disposes of tbe exceptions to tbe charge of tbe court below founded upon tbe variance. It is apparent that, bad tbe complaint not been amended after verdict, tbe judgment could not bave been reversed for the' variance. Tbe amendment therefore worked no injury to tbe appellant. It was purely formal. And whatever might bave been tbe affect of the affidavit of surprise, if made upon amendment during trial, it was too late after verdict for any purpose, except as an appeal to tbe discretion of tbe court below, on tbe motion for a new trial. It appears that, at tbe loms m guo, tbe worked and traveled part of tbe road was wide enough for three or four teams abreast; and tbe jury was instructed, in substance, that tbe town was liable only for defects in tbe worked and traveled part, but was liable for defects anywhere in that. This was undoubtedly correct. Kelley v. Fond du Lac, 31 Wis., 179; Cremer v. Portland, 36 id., 99. But tbe appellant claims that there was evidence tending to show two ruts or gullies; one in tbe traveled roadway, and another on tbe side of tbe road which might be considered outside of tbe traveled part; and that tbe wagon in which tbe female respondent was riding, meeting another team, turned to tbe left contrary to tbe law of the road, thus encountering tbe gully on the roadside, [678] and so causing tbe accident. We are able to discover no evidence showing that tbe wagon went out of tbe traveled part of tbe road. And' if both ruts or gullies were in tbat part, it is immaterial in law wbicb caused tbe injury. But it is sufficient to say tbat tbe appellant asked for no instruction on tbat point; and tbat, under tbe charge of tbe court, tbe jury must llave found tbat at tbe time of tbe accident, tbe wagon was in tbe traveled part of tbe road, and tbe driver was guilty of no contributory negligence. Tbe merits óf tbat question were presumably passed upon by tbe court below in refusing a new trial. And tbe order, in such a case, will not be reviewed in this court. Van Doran v. Armstrong, 28 Wis., 236. By the Court. — Tbe judgment of tbe court below is affirmed.