Benedict v. City of Fond du Lac

ByaN, O. J. There are extreme cases in which the dangerous character of a highway is so great and so manifest that courts are warranted in holding it unsafe, as a matter of law. Prideaux v. Mineral Point, 43 Wis., 513. So of its sufficiency, also. McMaugh v. Milwaukee, 32 Wis., 200. But generally the sufficiency of a highway is a mere question of fact, to be determined by the jury upon evidence of its actual condition. Draper v. Ironton, 42 Wis., 696. The opinions of witnesses of its sufficiency or insufficiency, are inadmissible. Montgomery v. Scott, 34 Wis., 338; Oleson v. Tolford, 31 id., 327; Griffin v. Willow, 43 id., 509. Possibly there might be cases in which the opinions of experts might be admissible upon matters going to the sufficiency of a highway. Generally, however, it is a pure question of fact, not of science or skill. In the present case, the court below exclude^ the opinion .on the sufficiency of the highway, of one who had been a civil [497] engineer, but who did not appear to have had such shill or experience in the construction of highways as to make him an expert. In the language of- Mr. Justice Cole in Oleson v. Tolford: “ It seems to us the 'opinion of the witness was asked in respect to a matter involving no professional skill, and about which the jury were to make their own inferences and form their own judgments.” Or, as the same learned judge says in Montgomery v. Scott: “From the nature of the case, the jury were quite as competent to form a judgment as to the sufficiency or insufficiency of the highway, from facts submitted on the subject, as the witness could be.” There is, therefore, no error in the exclusion of the opinion of one witness, or in striking out the opinion volunteered by another, on the sufficiency of the walk here in question. The locus'in quo was within a public street, which the city was bound to keep in proper condition for public travel. And its liability is not lessened by the fact that the abutting lot-owner was, as between him and the city, primarily bound to construct the walk, and in fact constructed it. When the walk was expressly or tacitly accepted by the city, in discharge of its own duty to the public, the city was equally accountable for it as if it had itself constructed it. This is ruled by several cases in this court, though apparently never deemed of consequence enough for discussion. It is quite too late to question the general liability of the city for injuries arising from defective highways within it. The questions of the sufficiency of the highway, of notice to the city, and of the female plaintiff’s contributory negligence, were properly submitted to the jury, and the verdict is sustained by evidence. This court cannot hold that such a verdict for such an injury is excessive. By the Oowrt. — The judgment of the court below is affirmed.