Wiltse v. Town on Tilden

Oassoday, J. A careful examination of the printed case convinces us that there is sufficient evidence to support the general verdict and also the particular finding against contributory negligence; and hence there was no error in refusing to nonsuit the plaintiff or set aside the verdict on that ground. The law in respect to such cases has been fully considered in Hopkins v. Rush River, 70 Wis. 10, and Jung v. Stevens Point, 74 Wis. 547. This action is brought under secs. 4255, 4256, E. S. It is claimed that the complaint does not sufficiently allege the representative character of the plaintiff to sustain this action. It alleges, in effect, that the plaintiff was the mother [156] of tbe intestate, and dependent upon ber in a large degree for support, and bad suffered pecuniary loss, damage, and injury by reason of ber death, in tbe sum stated. Tbe statute provides that “ every sucb action shall be brought by and in tbe name of tbe personal representative of sucb deceased person, and tbe amount recovered shall belong and be paid over to ” tbe person or persons entitled as therein designated. Among tbe persons thus designated are, in default of descendants, tbe deceased’s “ lineal ancestors,” which, of course, include ber mother. It will be observed that tbe action is to be brought by and in tbe name of tbe personal representative of sucb deceased person; that is to say, by tbe executor or administrator of tbe estate of tbe deceased in bis representative capacity. Whiton v. C. & N. W. R. Co. 21 Wis. 310. Here tbe mother, as adminis-tratrix, brings this action as such personal representative. Of course it must appear by pleading and proof that there is a person in being who is entitled to tbe money when recovered. Woodward v. C. & N. W. R. Co. 23 Wis. 400. Here tbe facts alleged sufficiently show tbe mother to be sucb a person. If there is any one else entitled, sucb claim can be considered on tbe distribution of tbe fund. In this connection it was proper to admit in evidence tbe judgment of tbe divorce of tbe plaintiff, and tbe awarding of tbe custody of tbe girl to tbe mother, and also evidence of ber pecuniary necessities, and tbe education and capacity of tbe girl for earning money; and hence tbe objections to sucb testimony were properly overruled. Johnson v. C. & N. W. R. Co. 64 Wis. 425. We must sustain tbe court in rejecting improper cross-examinations and leading questions. Tbe court properly rejected tbe opinions of witnesses upon questions which tbe jury were as competent to determine as tbe witnesses, and also as to what other witnesses did in marking tbe stage of tbe water; also as to whether tbe brush, at tbe begin [157] ning of the Cook’s Talley road, had previously been placed there to direct travelers to go by a different route. Exception is taken because the court in charging the jury stated, in effect, that the defendant admitted, or there was no question on the evidence, that the highway, at the time and place mentioned, was unsafe and out of repair, but that the defendant claimed that it had become so suddenly, and by an extraordinary rainfall, etc. It seems to us that such statement was fully justified by the evidence in the record. Exception is also taken because the court charged the jury that, “ if you believe that the defendant had notice of the condition of the road as it was immediately before the rise of water in the creek,' — ■ and of that, on the evidence, there earn be no question,— you will consider whether the condition ©f the highway on the morning of the accident, after the water had overflowed the road, considering the previous defects and the nature of the creek, was one that might reasonably have been anticipated by the town authorities. If the condition of the road immediately preceding the rise of water was such that the dangerous condition caused by such rise of water might reasonably have been expected by such town authorities, and the notice of such previous condition, then it was incumbent on the part of the town to either have closed up the road till.it was repaired, or provided such means as to have warned persons traveling on such highway, in the exercise of ordinary care, of the danger.” This portion of the charge seems to be sufficiently guarded, and was, as we think, justified by the evidence. The charge of the learned circuit judge is full and fair, and we find no error in it. It is claimed that the damages are excessive. But we do not feel authorized by the record to say that the jury were misled either by passion, prejudice, or ignorance, and hence, under the repeated rulings of this court, we are not authorized to interfere. Johnson v. C. & N. W. R. Co. 64 Wis. [158] 431, 432, and cases there cited. In such, a case the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of the life, even beyond the minority. Ibid. By the Oourt.- — • The judgment of the circuit court is affirmed.