Walker v. Village of Ontario

BaRdeex, J. One of the grounds urged to justify the non-suit is that plaintiff failed to comply with the requirements of ch. 197, Laws of 1899. That chapter provides, among other things, that the owner of any steam engine who propels it or causes it to be moved along or upon any culvert or bridge shall be liable for all damages (subd. 5, sec. 1) “when the person in charge of any steam engine shall neglect to span any bridge or culvert, before crossing the .same, with hardwood planks at least two inches thick and twelve inches wide, so that the engine shall rest thereon in crossing such [117] bridge or culvert.” Plaintiff’s testimony as to the manner in which the bridge was planked is as follows: “ Mr. Ritske and I put the plank on the bridge. The plank used were some planks lying there. They were rock-elm plank, I think. They were good, sound plank. Were reasonably straight. The plank were twelve feet long; perhaps one or two fourteen feet. I think one or two of the plank were eight inches wide, arid the balance ten inches wide, and one or two twelve inches wide. Am not positive that there were any twelve inches wide. The plank run across the bridge from cap to cap. Then laid down another plank beside them, so as to break joints. Planked both sides alike. . . . The plank were laid side by side, end to end, and another row, breaking the joints, at the side. The joints were broken by laying the plank side by side. The wheels were kept on the plank.” The argument is that, because the planks used were not twelve inches in width, the statute has not been complied with, and hence there can be no recovery. If we understand the testimony quoted, the track upon which the wheels of the engine ran was more than twelve inches in width, but was made up of two planks instead of one. If this is so, the spirit of the statute has been complied with. The plain purpose of the law was to protect the covering of the bridge from injury by the projections .or calks on the wheels of the engine. This could be done by two planks placed side by side, as well as by a single plank, if they were together of the required width. ' Another important consideration in this connection must be mentioned. To make the failure to comply with the requirements of the statute a defense, it must be shown that there was some direct causal relation between such failure and the accident which followed. This was discussed in Sutton v. Wauwatosa, 29 Wis. 21, and emphasized in the late case of Welch v. Geneva, 110 Wis. 388. We do not think the trial court was justified, as a matter of law, in saying that such connection or relation existed in this case. The [118] testimony regarding the defective character of the bridge was quite strong, and, when considered in connection with the other circumstances, there was room for a fair inference that there was no causal relation between the failure to properly plank the bridge and the accident which happened. It is further argued that the plaintiff was guilty of contributory negligence as a • matter of law. The bridge bad been built twelve or thirteen years. The stringers and braces were defective and rotten. It does not appear just how close an examination -of the bridge would have been required to have discovered these defects, except that one witness said that the usual method of testing such structures was to take a small bit and bore into1 the timbers. The plaintiff knew of the age of the bridge, and had passed over it daily. . So far as he knew, the only repairs that had been made upon it were that it had been replanked some years previous. If the defects mentioned were so obvious that in' the exercise of ordinary care the plaintiff could have discovered them, then of course he was guilty of negligencein attempting to cross. But that fact does not clearly appear. Ordinary care did not require him to make the test spoken of by the witness. He was only bound to make use of his senses, and make such observations as common prudence would seem to dictate, in view of his knowledge and all the surrounding circumstances. Ve do not think the inference of negligence was so conclusive as to justify taking the question from the jury. A remark of the court, in deciding the motion for non-suit, to the effect that the court could not take judicial notice that traction engines were in common use over the highways in that vicinity, is supposed to have some significance. If the court was attempting to justify the nonsuit on the ground that a traction engine, weighing 9,500 pounds, was an unusual and uncommon vehicle on the highways, he would seem to be running in the face of the statute. Oh. [119] 197, Laws of 1899, impliedly, at least, justifies the use of highways by such means, without liability on the part of owners, if they comply with its requirements. The fact that the legislature has seen fit to enact regulations concerning the use of engines on highways generally would seem to imply an obligation on the part of the authorities to keep up their highways and bridges to a standard of usefulness and safety sufficient to meet those requirements. Under the proof, however, the court was not required to assume judicial notice of the fact mentioned. One witness, at least, testified to the use of such engines in that vicinity for a number of years, and that was sufficient to carry the case to the jury, if it was deemed of controlling importance. Upon the whole evidence, we think the case should have been submitted to the jury. By the Court.— The judgment is reversed, and the cause is remanded for a new trial.