Prahl v. Town of Waupaca

BabdeeN, J. The main question litigated in the trial court, and the one urged with greatest vigor on this appeal, is that the highway was not shown to be in such a state of insufficiency or want of repair as to render defendant liable for plaintiff’s accident. The facts regarding the exact condition of the highway were in sharp dispute. The accident occurred at a culvert in a narrow turnpike, in a depression between two hills. The testimony regarding the width of the culvert and the height of the turnpike was conflicting. The jury found the culvert was eleven feet wide, and the turnpike was eighteen inches high, and with abrupt banks. There is evidence to support these conclusions, and they must stand as verities in the case. The plaintiff was traveling west. Just before reaching the culvert the horse shied at some drain pipes left in the highway by the town authorities on the north side of the turnpike,' and the buggy ran off the south end of the culvert, and plaintiff was [302] thrown out and injured. The place was without guards. The face of the turnpike was smooth. The usual traveled track was about one and one-half feet from the south end of the culvert. The jury found, under proper instructions, that the road was insufficient and unsafe for public travel. That question is always one for the jury, unless the conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy. If, in the exercise of reason and with impartial judgment, a jury has found the highway to be insufficient, their finding must ■stand, unless we can say that the evidence, and the legitimate inferences therefrom, are so clear and decisive that no reasonable or unbiased man would have reached that conclusion. The rule is akin to that applied in cases of contributory negligence, of which there are many in the books. See Powell v. Ashland I. & S. Co. 98 Wis. 35. When the condition shown is such that different minds may reasonably draw different inferences and arrive at different ■conclusions, the jury, and not the court, must make the ultimate determination. It must be confessed that this case is very close to the border line. At the same time, we are not convinced that we ought to say that the highway was reasonably safe, as a matter of law. When we come to consider the width and height of the turnpike, and the surrounding conditions referred to, there is, at least, some room to say that it was not reasonably adequate or sufficient for public travel. The jury and the ■trial court have said so, and the inferences against it are not so clear and strong that we feel justified in overturning that conclusion. Gorr v. Mittlestaedt, 96 Wis. 296. See Chappell v. Oregon, 36 Wis. 145; Hein v. Fairchild, 81 Wis. 258. The defendant sought to introduce testimony of measurements made by a witness a year or more after the accident. The evidence is undisputed that changes in the turnpike [303] bad been made after tbe accident, and before the measurements were made, to such an extent as to leave no reasonable basis therefor. The rejection of such evidence was fully justified. By the Gourt.— The judgment is affirmed.