Salladay v. Town of Dodgeville

PiNNbt, J. 1. The statute requires (S. & B. Ann. Stats, sec. 1339) as a condition of maintaining an action for damages sustained by any person by reason of the insufficiency or want of repairs of any highway, that within ninety days after the happening of such event notice in writing signed by the party, his agent or attorney, shall be given to a supervisor of the town against which damages are claimed, “ stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it.” The object of the notice is “ that the town authorities may investigate and ascertain the facts, both as to the defect in the highway and of the injury occasioned by it.” Plum v. Fond du Lac, 51 Wis. 393. Reasonable certainty is all that is required. “ The notice should point as-directly and plainly to the place of the injury as is reasonably practicable, having regard to its character and surroundings.” White v. Stowe, 54 Vt. 510. And this rule this court has held in Weber v. Greenfield, 74 Wis. 238, to be founded in good sense, and may be easily complied with. The notice in Weber v. Greenfield, supra, was held defective because misleading, in that it not only wrongly described the. place of the injury but was inaccurate in other respects, as fully stated in the opinion of the court. 74 Wis. 236, 237. In this case the road is described as the one leading from the 'city of Dodgeville past the Floyd school-house in the said town, and the particular place and the particular point is designated as being about 100 yards east of the residence of Mrs. Freeman, and somewhere near the line of sections 20 and 29, in township 7 N., range 3 E., in said [325] town; and the insufficiency and want of repair, which in this case served to locate the place of injury, was the general bad condition of the highway and some loose stones lying in the traveled track of said highway. The evidence does not disclose any other practicable method of describing the locus in quo by its surroundings, and shows also that before it was served the plaintiff’s husband visited the place with the supervisors, and pointed out the precise defect complained of, and that the supervisors examined the entire road through the rocky point mentioned. The notice was signed by both the plaintiff and her husband, the latter being also a claimant for satisfaction for damages sustained by the same cause. We think that from the notice itself and the objects and points described in it there could be no difficulty experienced in finding the place of the injury, notwithstanding it may have been inaccurate in stating that the injury was caused by loose stones in the traveled track, instead of a stone partly imbedded in the road, as the evidence showed to be the fact (Fopper v. Wheatland, 59 Wis. 623), and meets the requirements of the rule stated in Weber v. Greenfield, supra. As a mere question of variance in respect to the stone being partly imbedded in the road, instead of being loose stones, we think, in view of the condition of the road at this rocky point, it could not have misled the town officers. Such a variance between an allegation in a pleading and proof would be properly disregarded. The circumstance that the stone which caused the injury was described as .loose, when in fact it was fastened or imbedded in the track, was, we think, immaterial, if either in a loose,.qr.imbedded condition it constituted an insufficiency or want .of repair, as the jury have found to be the fact. 2. There was no error in admitting the evidence of the witness Persons describing the condition of the road at the point in question two weeks after the accident, and. [326] daring the spring and summer of 1891. There was no evidence to show that any repairs had been made within that time, and the evidence tended to show that its condition had remained daring all this time practically unchanged, down to the 7th of October. As we understand the testimony, it was attempted to be shown on the part of the town that there had been no material change down to the time of the trial. As the jury had visited or were about to visit and view the place, it was competent to show by the witness Pollard that earth had been plowed up on the banks and thrown in upon the track, materially changing the .situation. As this evidence was offered in rebuttal of the defendant’s claim, there can be no doubt that it was properly received. 3- The objection that it was error for the court not to read to the jury the evidence of the two Smiths who were witnesses at the trial, as well as that of Mr. Pollard, when they came into court asking that the testimony of these witnesses might be read to them, cannot be maintained. We do not understand that the court refused to have the testimony of the Smiths read, but that after the testimony of the witness Pollard had been, read the court stated the substance of their evidence on the point in question. How much of the evidence and what parts of it may be stated anew, or read to the jury under such circumstances is a question within the discretion of the presiding judge, under sec. 2855, R. S., and error can be assigned in this repect only-in case of a clear abuse of such discretion. Byrne v. Smith, 21 Wis. 68. 4. Error is assigned that, when the jury.'came into court to hear some of the testimony read, the presiding judge stated that “ there is no question at all, under the testimony, that there was a stone there [in the traveled track]. Its size and character and exact location you are to determine.” He stated also, in substance, the testimony of the [327] witnesses on both sides as to its size and situation, and added that “ you will have to determine these matters. There is a conflict of testimony, and you will have to try and reconcile this testimony and arrive at some conclusion.” We do not think there was any error in this respect. We think the undisputed testimony of all witnesses having any definite knowledge on the subject is that there was a stone or stones in the traveled track. The court left the question of their size, character, and location to the jury to find whether they constituted a defect or want of repair which caused the plaintiff’s injury. 5. The instructions of the court in respect t¡,o the effect of the after pregnancy of the plaintiff upon the question ■of damages, we think were correct. If the plaintiff had rendered the consequences of the wrongful act of the defendant more severe or injurious to herself by some voluntary act which it was her duty to refrain from, or if by her neglect to exert herself reasonably to limit the injury and prevent the damages, in the cases in which the law imposes that duty, and thereby she suffered additional injury from the defendant’s act, evidence is admissible in mitigation of damages to ascertain to what extent the damages claimed are to be attributed to such acts or omissions of the plaintiff. It is a question of negligence, and the measure' of duty is ordinary care and diligence in the adoption of such measures of care or prevention as the case required and were within her knowledge or power. 1 Suth. Dam. § 155, wt swpra. It does not appear that her medical adviser gave her any caution to avoid sexual intercourse or even pregnancy, nor is there any evidence to show that she knew or understood that the nature of her injury was such that it was prudent that she should do so. The mere fact that eight weeks after the injury pregnancy occurred, and when no caution in that respect appears to have been given by her medical adviser, is not necessarily and as a [328] matter of law sufficient ground to justify a reduction of damages for the injury caused by the defendant’s negligence, although the results of the injury may have been thereby prolonged or her recovery delayed. The instructions given were correct in view of the testimony, and the one asked by the defendant was properly refused. The doing of any act which prevented or retarded her recovery is not of itself a ground for reduction of damages. To have that effect it must have been a negligent act, and whether an act is or is not negligent is a question for the jury, and not of law for the court, if different minds may properly draw different inferences, even from the same established facts. . The instructions asked entirely ignored this material consideration, whether the plaintiff was negligent or at fault for what occurred after her injury. A considerable number of witnesses were examined on each side, and in many respects the evidence is conflicting. The circuit court was satisfied with the findings of the jury, and denied — as we think, very properly — a motion to set aside the verdict as being contrary to the evidence. The verdict is a small one in view of the evidence as to the character of the plaintiff’s injuries. We find no error justifying a reversal of the judgment of the circuit court. By the Gowrt.— The judgment of the circuit court is affirmed.