Olson v. Town of Luck

Winslow, J. Inasmuch, as no exceptions to the charge oí the court were filed during the trial term, no errors can be successfully assigned upon the charge. Stats. 1898, sec. 2869; Circuit Court Rule XXIV, sec. 3. Nor can we say that it was error to refuse to submit to the jury, as a part of the special verdict, the questions submitted by the defendant as to the alleged contributory negligence of the driver of the horse. Such negligence, if there was any, would, on familiar principles, be imputable to the plaintiff, and, in legal effect, would become her negligence. Ritger v. Milwaukee, 99 Wis. 190. So, the question,of the verdict, which asks whether the plaintiff was guilty of contributory negligence, would, under proper, instructions (which we must assume were given), cover the question of the contributory negligence of the driver of the vehicle. There is, however, one error assigned which, in our opinion, is fatal to the judgment. The plaintiff was allowed to prove, against objection, that the highway between the place of the accident and the place where the wagon was found (a distance of more than a mile) was full of rocks and holes. Of course, the fact that there were other serious defects in the road at other points, at a distance from the alleged defect which caused the accident, can have no legitimate bearing on the question as to whether the projecting stone in question was or was not an actionable defect, but it is manifest that such evidence would be almost certain to have great weight with the jury upon this very question. It is true there are a number of cases in this court holding that, where a defect in a certain sidewalk, bridge, or other similar structure is charged to have caused an injury, evidence of the general bad condition of the same sidewalk, bridge, or structure may be shown, provided the general disrepair proven is of the same general character as the defect in question. Shaw v. Sun Prairie, 74 Wis. 105; Barrett v. Hammond, 87 Wis. 654. In these cases, however, such tes [36] timony was not admitted for the purpose of proving negligence or that the defect in question existed, hut only for the purpose of proving constructive notice to the corporation of the defect in question, which would be fairly infer-able from the existence of many similar defects, resulting from the same general cause, in the same structure. In the present case the projecting stone appears to have been (if a defect at all) a defect in the original construction of the road which had existed for many years, and hence the ■question of notice was not material, and the principle laid down in the decisions cited does not apply. It was argued that this testimony was admissible for the purpose of showing that the harness was probably broken after the horse ran away, and thus refute the defendant’s theory that the harness broke before reaching the stone. The testimony was, however (except in one instance), received generally; and, even were this not the case, we are unwilling to sanction a rule which would place before the jury evidence of this charac•±er, which is immaterial on the main question litigated, and ■ so well calculated to induce a verdict founded upon what maybe called general principles, rather than upon competent ■ evidence of the defect charged. Such a rule would open up many immaterial issues, and would, we think, be dangerous in the extreme, and tend to hold corporations liable because they had been negligent in distant places, when perhaps there had been no negligence fairly shown at the place of the accident. By the Court.— Judgment reversed, and action remanded .for a new trial.