Spaulding v. Town of Sherman

Cole, C. J. While we think one exception taken to the charge of the circuit court is good and must work a reversal of the judgment, we cannot say, on the proofs adduced, on the trial, that there can be no recovery against the town for the injuries sustained by the plaintiff. Tiffs is what the learned counsel for the defendant asks us to declare upon all the facts submitted. There was certainly ample testimony in the case from which the jury might find that the bridge in question was unsafe, and that the officers of the town, in the exercise of reasonable care and diligence, could have discovered the defect and repaired it. It is an indisputable fact that, a short time before the accident, the town authorities had actual knowledge that the bridge was in a defective condition, and had caused repairs to be made upon it. This was certainly notice to them that the timber in the bridge was decaying, and required them to make a thorough inspection of the structure, or have it examined by a competent bridge builder, to ascertain its true condition. This degree of responsibility was imposed upon them by what they had learned or knew about the bridge. Such, in effect, was the decision of this court in Shaw v. Sun Prairie, 74 Wis. 105, which involved a kindred question as to latent defects in the sidewalk, by which the plaintiff was injured. This rule does not impose too great diligence and care upon town authorities under such circumstances. In this case the jury found, in answer to questions submitted, [80] that the officers of the town did not exercise ordinary and reasonable care to keep and maintain a bridge where the accident occurred; that it was not reasonably safe; and that the officers, in the exercise of due care, could have discovered the defect. There was abundant evidence to sustain these findings, but, as there must be a new trial, we shall not discuss it. We will now proceed to notice the error in the charge of the court to which we have referred. It appears that the plaintiff was injured while crossing the bridge, driving a team and wagon loaded with shingles. He was traveling in a northerly direction, and had passed over the greater portion of the bridge. He describes the cause and manner of the accident in his testimony as follows: “ There was a post mortised into the mud-sill, and a beam, ran across the mortise into this post, and the end of this tenon was rotted off, and let the beam drop, and the post dropped out this way to the ground, and this beam dropped down, and the plank dropped down, and my feet caught under the plank. On the bridge there was a railing on the top of a post, and this railing swung off to one side, and my feet caught under the plank of the bridge, and this railing swung over them. It was the cross-beam that gave way. I was thrown to the left. It was the west side of the bridge, or the nigh side, that broke down. This tipped the load over, turned the wagon bottom side up, and scattered the load all along the side of the bridge. 1 . . At the time of the accident I was sitting on the front end of the load. Portions of that load of shingles fell upon me. When I fell the load turned bottom side up, and the shingles went over onto me. There were four bunches of shingles lying on my broken limb. . . . The load turned bottom side up, and the wagon turned upon its side, and that turned the rack so that it laid bottom side up. It laid directly over me; broke the front axle out of .the wagon.” In another place of his testimony [81] be says, on cross-examination, “ that this axle broke in the wagon at the time the bridge broke. I do not know what caused the break of the axle; whether the breaking of the bridge caused it or not.” In its charge the court, among other things, said to the jury that there was no dispute upon the testimony of the fact that the plaintiff received an injury by reason of the falling of the bridge; that there was no dispute upon the testimony that the bridge was defective. This charge was excepted to, and it is now insisted that it related to mere questions of fact, which should have been submitted to the jury on the evidence, and should not have been decided by the court as matters of law. ¥e are clearly of the opinion that these questions should not have been withdrawn, as they were, from the consideration of the jury. The evidence in regard to them is not so clear and undisputed as justified the court in deciding them as questions of law. Furthermore, we think it was for the jury to determine whether the bridge was' defective; and, in view of the plaintiff’s testimony as to the breaking of the axle, the jury should have been instructed to determine whether the breaking of the axle or the falling of the bridge was the proximate cause of the injury. The evidence is very obscure as to how the breaking of the axle affected the load upon the wagon. If it was the efficient cause of throwing the wagon over, with its load, upon the bridge, it may have broken that structure down, when otherwise the plaintiff would have crossed it in safety if the axle had not broken. It is said on the part of the plaintiff that there is not a particle of testimony which tends to show that the breaking of the axle had any effect whatever upon the load in the wagon; that the axle broke as a consequence of the bridge falling; and that no other inference can be made on the facts. On the other side it is insisted that it was the broken axle which caused the injury; that when it broke [82] it threw the load of shingles violently upon the bridge, and broke it down. At first we had some doubt whether there was sufficient evidence to carry the question to the jury as to whether the breaking of the axle did cause the injury; but, after a careful examination of all the evidence, we think that question should have been submitted, and that the court should have directed the jury to determine whether the breaking of the axle or the falling of the bridge was the proximate cause of the injury, and that it was error not to-so charge upon the testimony which had been adduced on the trial. So, without considering any other question discussed, we reverse the judgment for this error in the charge, and send the case back for a new trial. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.