Jenewein v. Town of Irving

The following opinion was filed April 19, 1904: Cassoday, C. J. It seems to be undisputed that the highway at the place in question runs in a northerly and southerly direction; that the road was level and practically straight over the culvert and for some distance each side, though it curved slightly toward the west; that the width of the road at the culvert was between thirteen and fourteen feet, and on a fill of some eighteen inches higher than the ground within the limits of the highway proper at either side thereof, and the sides of the fill sloped gently to the level ground; that the culvert was made of timber covered with poles some seventeen or eighteen feet long, covered with perhaps a foot of earth; that from the wheel track on the westerly side to the margin of the highway was from two and one half to three feet; that at the west end of the culvert there was a deep hole, over five feet wide, east and west, and about seven feet long, north and_ south, and over five feet deep from the surface of the highway over the culvert; that there was a large body of sno^v on the ground April 4, 1899, and on that day and the day following, which was the day of the accident, the weather was very warm, and the melting snow caused the water to rise in the vicinity of the culvert, so that at the time of the accident, which happened about 4 o’clock in the afternoon, the highway at the culvert was submersed by a stream of water, about thirty feet wide, flowing from the hole described over the [232] road from the west to the east, and from sis to ten inches in depth, and that the culvert was located about the middle of such stream of water; that on the day in question the deceased, with the two young daughters of the plaintiff, left their home shortly after dinner to go to Black River Falls in an open buggy drawn by a single horse; that as they approached the culvert going north the deceased was seated on the east or right side of the buggy, and the two little girls seated on her left; that shortly before reaching the culvert they passed the stage coming south from Black River Falls, and which had necessarily passed through the water and over the culvert; that the deceased had some conversation with the stage driver at the time of passing; that-they also passed a lady driving a single horse and coming south, a few rods south of the culvert, and who had necessarily driven through the water and over the culvert; that;when they reached the water running over the culvert the deceased was holding one line firmly in each hand, and driving straight ahead from where the wheel tracks entered the water on the south to the point where they naturally would have come out of the water on the north; that the horse was in the left-hand traveled track when they reached the water; that when they got about halfway through the water the horse’s front feet suddenly went down in the hole at the west end of the culvert (described) , and the buggy was tipped over to the west into the hole, and the deceased was thrown into the water and drawn into the culvert and was drowned. 1. We perceive no error in the admission of testimony tending to prove that the highway curved slightly as it passed over the culvert. The ground of the objection is that such curvature was not specifically alleged in the complaint. But the defect claimed was specifically alleged, and the allegations were sufficiently broad to admit evidence as to the condition of the highway at and near the place of the accident. Such 'evidence had some bearing, at least, upon the question whether [233] there was any contributory negligence on the part of the de-ceased. 2. Error is assigned because at the close of the testimony the court refused to direct a verdict in favor of the defendant on several grounds stated. It is undisputed that the deep hole at the west end of the culvert was in close proximity to the traveled track, and that there were no guards or railings or anything to indicate its location or the danger. We cannot say, as a matter of law, that the highway at the point in question was not defective. This court has repeatedly held that, “to render a town liable for injury by reason of a defective highway, the object or defect causing the injury need not be within the traveled track, provided it is so connected with the traveled track as to render the same unsafe and inconvenient to those traveling thereon.” Slivitski v. Wien, 93 Wis. 460, 462, 67 N. W. 730, and cases there cited; Carpenter v. Rolling, 107 Wis. 559, 563, 83 N. W. 953; Wells v. Remington, 118 Wis. 573, 580, 95 N. W. 1094, 1096. 3. Another ground upon which the court was asked to direct a verdict in favor of the defendant is that the highway, at the time and place of the “accident, had become temporarily dangerous to travel, by reason of an extraordinary, sudden, and unprecedented rise of water, overflowing said highway.” This court held, many years ago> that a municipality “is not bound to provide against extraordinary storms, such as private persons of ordinary prudence do not usually anticipate and provide against.” Allen v. Chippewa Falls, 52 Wis. 430, 9 N. W. 284. The principle of that case was followed and sanctioned in a recent case, where it was held that “the duty of a municipality to keep its highways iri a reasonably safe condition for public use does not include providing against insufficiency caused by extraordinary events.” Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946. In that case the “extraordinary event” referred to was an extraordinary flowage ox accumulation of water. Usually such ques234 lions' are'for the jury. Thus it has been held that “the question whether, in a given case, the freshet causing the danger was of such unusual and extraordinary character as to excuse a party from foreseeing and providing against it, is for the-jury under proper instructions.” Borchardt v. Wausau Boom Co. 54 Wis. 107, 11 N. W. 440. To the same effect, Wiltse v. Tilden, 77 Wis. 152, 46 N. W. 234. Such extraordinary flowage or accumulation of water is usually considered upon the question of contributory negligence. Hopkins v. Rush River, 70 Wis. 10, 34 N. W. 909, 35 N. W. 939; Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513. It will be so-considered in this case. Upon the evidence in the record we cannot say, as' a matter of law, that the sudden rise of tidewater was the proximate cause of the injury. On the contrary, we must hold that it was a question for the jury. 4. But that question was not submitted to the jury. The complaint was silent as to- any unusual or extraordinary accumulation of water; but the answer expressly alleged that the melting of snow and the freezing óf water in the culvert temporarily decreased and lessened the capacity of the culvert to carry off the water; that April 5, 1899, there occurred an unusual and extraordinary thaw, causing the sudden and rapid melting of snow and an unusual and extraordinary accumulation of water upon the west side of the highway and culvert; that such formation and existence of ice within the culvert, together with the extraordinary accumulation of water, caused an overflow of the highway at the culvert at the time of the intestate’s death; and that the existence of’ ice within the culvert was unknown to the supervisors or citizens of the town before the accident. Such allegations of new matter in the answer must be deemed to have been contro verted by the plaintiff, as upon a direct denial or avoidance. Sec. 2667, Stats. 1898; Ashland v. W. C. R. Co. 114 Wis. 104, 89 N. W. 888. Such being an issue made by the plead235 mgs, it should have been submitted to tbe jury in some appropriate form. This court has uniformly held that tbe formation of special verdicts is largely in tbe discretion of tbe trial court. Lee v. C., St. P., M. & O.R. Co. 101 Wis. 352, 362, 77 N. W. 714; Reddles v. C. & N. W. R. Co. 74 Wis. 258, 42 N. W. 237. But tbe court has also frequently held that a special verdict which does not determine all the material and controverted facts in issue is defective, and that such, defect is not waived by a failure to object to the questions submitted or to request the submission of other questions. Sherman v. Menominee R. L. Co. 77 Wis. 14, 22, 23, 45 N. W. 1079; McFetridge v. Am. F. Ins. Co. 90 Wis. 138, 142, 62 N. W. 938; Western W. S. Co. v. Chippewa Co. 102 Wis. 622, 623, 78 N. W. 764; Hildman v. Phillips, 106 Wis. 611, 616, 82 N. W. 566. The question recurs whether such failure-to specifically submit the question suggested was cured by anything in the charge. 5. True, the court did submit to the jury the question whether such insufficiency or. want of repair of the highway was the proximate cause of the death of. the plaintiff’s intestate. The scope of the question is so broad that the court-might have instructed the jury in such a way that their answer would necessarily have determined whether on April 5,. 1899, there occurred an unusual and extraordinary thaw, causing the sudden and rapid melting of snow and an unusual’ and extraordinary accumulation of water upon the west sidé-of the highway and the culvert; and, if so, whether that was the proximate cause of the death of the plaintiff’s intestate. But no attempt was made to submit such question to the jury. After defining “proximate cause,” the court directed the jury to consider and determine whether the death was the natural and probable result of the negligence of the town, and whether, in the light of all attending circumstances, such an injury, or a similar injury, ought to have been foreseen by a236 person of ordinary care. The jury were then told, in effect, that it was not necessary that the town authorities ought to have foreseen that there might be high water at some time, and that a person might come along and get off the road at this point and into the water and get drowned; but that it was sufficient if they believed that the highv/ay was defective, and that the accident was the natural and probable result thereof, and, in the light of all attending circumstances in that vicinity, an ordinarily careful person ought to have foreseen that some similar injury might be reasonably expected to occur and ought to have been foreseen as liable to occur. The charge left the jury to infer that the high water at the time and place in question was a condition which merely increased the danger of a previously existing defective highway — in case they found it to be defective. But it excluded from their consideration the question so put in issue by the pleadings. We must hold that the failure to submit that question to the jury was not cured by the charge. 6. It is claimed that a verdict should have been directed in favor of the defendant on account of the contributory negligence of the deceased, and that the third finding of the jury is not sustained by the evidence. The case is broadly distinguishable from Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946, relied upon by counsel. The line of the highway with parallel fences on the side was obvious tq the traveler. As indicated, the deceased knew that the stage, and also a single horse and buggy, had just crossed over the culvert and through the water a few minutes before. She was unacquainted with the highway at the place in question. We cannot hold, as a matter of law, that she was guilty of contributory negligence. On the contrary, we must hold that it was fairly a question for the jury, as held in cases cited above. Borchardt v. Wausau Boom Co. 54 Wis. 107, 11 N. W. 440; Hopkins v. Rush River, 70 Wis. 10, 34 N. W. 909, 35 N. W. 939; Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513; [237] Wiltse v. Tilden, 77 Wis. 152, 46 N. W. 234; and Wells v. Remington, 118 Wis. 573, 95 N. W. 1094. By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial. Dodge, J., dissents.