Stricker v. Town of Reedsburg

Wihslow, J. It seems clear to us that this judgment is erroneous and must be reversed for several reasons. 1. There is no question in this case but that there was a highway by user, at the place of the accident, twenty-six feet in width, between the clump of trees on the west and the stump in question on the east. It appeared that this whole twenty-six feet was in good condition for travel at the time of the accident. It further appeared that at times there was a temporary track used east of the stump, but the proof entirely failed to show that this temporary track wras ever used long enough or continuously enough to constitute it a part of the highway, and the jury found that this track had only existed a few months at the time of the accident. So the evidence showed, without material contradiction, that the [462] highway consisted simply of the space between the trees on the west and the stump on the east, and no more, because the principle is familiar that a highway by user alone extends no further than the use which has created it. Thus the stump in question appears affirmatively to have been outside of the limits of the highway proven. It does not necessarily follow that the stump does not constitute an actionable defect because it was outside of the way established by user. If it is so close to the traveled way that a traveler using the traveled way and exercising ordinary care is still liable to suffer injury therefrom, then it will be a defect. Gorr v. Mittlestaedt, 96 Wis. 296; Slivitski v. Wien, 93 Wis. 460. Rut it can only be a defect as to one who is lawfully using tho prepared way and exercising ordinary care. If one is not using the way, but is voluntarily deviating therefrom upon adjoining lands, and runs into such an obstruction while returning to the way, he cannot recover. That is just what the evidence shows that the intestate’s husband was doing in the present case. He had voluntarily driven his team out of the limits of the highway, upon the temporary track to the east, when no necessity existed for such deviation, and when returning to the traveled track of the highway his wagon ran against the stump and the injuries complained of were suffered. In such a case there can be no recovery. Goeltz v. Ashland, 75 Wis. 642. 2. The jury first returned a verdict which the court thought to be inconsistent. By their answer to the second question they said that the road was a reasonably safe one, and by their answer to the sixth question they found that the stump made the highway defective. As said in Blesch v. C. & N. W. R. Co. 48 Wis. 168: “The power to refer the verdict of a jury back to them for further consideration must have, some limits, and the exercise of this power has always been looked upon with disfavor, except where it is exercised for the purpose of allowing the jury to perfect a verdict which [463] is imperfect by reason of their omission to make some computation of interest or the amount due on some contract.” It is only such a palpable eyror, mistake, or omission which can be corrected in this way,— something which is plainly a mere clerical or formal mistake. But, where the jury have found upon all issues submitted to them, the court is not empowered to call their attention to real or supposed inconsistencies in their answers, and again send them out to change their answers or to make them consistent. "We think the inconsistency here was not so plainly a mistake or misapprehension of the jury as would justify the court in committing the case again to the jury. State ex rel. White Oak Springs v. Clementson, 69 Wis. 628. 3. As has been before said, there was only shown a highway by user at the place of the accident, and the limits of a highway by user are determined by the limits of the user. In the present case, testimony was received, against objection, as to the direction of the fences at a considerable distance from the place of the accident, with the purpose of showing that, if such fences'were extended in a straight line to the place of the accident, the stump would be in the highway so bounded. This was plainly error, because such fences cut no figure in fixing the limits of a highway which was such simply by user. Elliott, Roads &'S. 291. It does not seem necessary to refer in detail to other assignments of error. It is believed that what has been already said sufficiently indicates the principles of law applicable in the case to guide the trial court upon a new trial. By the Court.— Judgment reversed, and action remanded for a new trial.