Grimm v. Town of Washburn

Bardeen, J. We have not been favored by any assignment of errors, but are left to a consideration of appellant’s entire argument to determine the grounds of its appeal. A statement is made that the complaint does not state facts sufficient to constitute a cause of action, but counsel fads to state in what particular the complaint is bad. If the attorney is unable to give any reason for the faith that is in him, we shall not help him to a reversal by hunting through the record to ascertain whether his faith is well founded. Again, he says, admitting that the complaint does state a cause of action, there is a fatal variance between the allegations and the proof. Again we are left in doubt and uncertainty. The variance said to be so fatal is left to be imagined or sought out in a maze of testimony covering some forty or fifty pages of the printed case. Rot one word is offered in the printed argument to put us on the trail of the “ fatal variance,” and we must decline to go scouting to find it. Counsel further insist that there is no evidence that the road on which the bridge was situated was a public highway. One answer to this contention is that it is alleged in the complaint to have been on a public highway, and it is not denied. Defendant’s counsel attempted to put this fact in issue, but, by an error much more fatal than the “variance ” mentioned, he neglected to cover this allegation in his answer except in the maimer now to be stated. The allegations of the answer in this respect are as follows: “ The defendant, further answering the plaintiff’s complaint, denies, on information and belief, that for a great number of years previous to the time alleged in the plaintiff’s complaint, the injury therein complained of, it had laid out, maintained, and used as a highway the road described in the [231] plaintiff’s complaint. Defendant further denies, on information and belief, for twenty years or more that it kept and maintained several bridges as alleged in the plaintiff’s complaint, prior to the injury alleged therein, and especially the one so indefinitely described in plaintiff’s complaint.” The language of this denial is almost precisely the wording of the complaint. A denial that the defendant had laid out, used, and maintained the road in question “ for a great number of years” raises no issue; no more does the denial that the town had kept and maintained the bridges “ for twenty years or more.” This denial would be perfectly consistent with the fact that the town had kept and maintained the bridges for nineteen years. PTo one could be convicted of perjury who should swear to such a denial. The vice of this pleading is that it is a negative pregnant, a form of pleading which has uniformly been condemned by the courts. Bliss, Code PL § 332. The question of the sufficiency of the denial was raised at the trial, and an opportunity to amend was offered to defendant, but declined. The ruling of the trial court that the pleading was bad was unquestionably right. The proof shows that the bridge upon which the plaintiff’s horses were injured had been in existence for a great many years; that the town had expended money at different times on the highway leading to it; that it was old, the stringers were rotten, and that plaintiff’s wagon broke through while passing over it. Whether, under the circumstances, it was prudent for the plaintiff’s servant to attempt to pass over with the load he had on the wagon, or not, was a question for the jury, as was also the question of notice to the town. Presumably, these questions were fairly submitted by the court, as no exceptions are taken to the charge, and the charge itself is not printed. The testimony that the bridge had been built for some time; that it was in bad condition about five years prior to the accident; that its timbers were old and rotten; and that its rotten condition caused the ac [232] cident,— were circumstances sufficient to take the case to the jury on the question of notice to the town. Spearbracker v. Larrabee, 64 Wis. 573; Koenig v. Arcadia, 75 Wis. 62; Shaw v. Sun Prairie, 74 Wis. 105. We see no reason for disturbing the verdict or reversing the ruling of the trial court. By the Ooumt.— The judgment of the circuit court is affirmed.