Donohue v. Town of Warren

Newman-, J. The appellant’s brief contains specifications of twenty-two errors claimed. Most are in the nature of criticisms of rulings of the trial court in the admission and exclusion of evidence and of the instructions given. None of the objections urged seem to be of controlling importance, or to affect the general fairness of the trial, and do not require examination in detail. On the argument two principal objections only were discussed. And they seem to cover all that is important in the case. They are: (1) “ The place where the accident happened was not definitely shown, and the question was not fairly submitted;” and (2) “the team was running away when the plaintiff was thrown out and injured, and the town is not, therefore, liable.” If by “ the place where the accident happened ” is meant only the place where the plaintiff was thrown from the buggy and injured, it is of little importance. The important question is if the defect which caused the accident was in the highway, and so near to the point designated in the notice to the supervisors and in the complaint as not to be in material variance from it. There was, indeed, abundant evidence to establish that there was a’ defect in the highway, very near to the designated point, where Allyn was thrown out, and where the team started to run, sufficient to have caused the accident, and sufficient to support the finding of the jury that [370] that was its cause. And certainly, if the defect in the highway was the cause of the running away of the team, it may well be held to be the proximate cause of the plaintiff’s injuries; for, while the town is not required to make its highways safe for teams which are in the condition of fright, and out of the control of their drivers, they are, nevertheless, liable for such damages as are the proximate consequence of a runaway which is caused by defects in the highway. Kelley v. Fond du Lac, 31 Wis. 179. It would make no difference that the injuries to the plaintiff were received at some distance from the place of the defect which, was the cause of the runaway. No material error is found in the case. By the Court.— The judgment of the circuit court is affirmed.