Johnson v. Town of Highland

Gassoday, C. J. 1. The propelling of steam engines upon the public highways of the respective towns in this state has for twenty years been regulated by the statutes. Ch. 175, Laws of 1885; ch. 509, Laws of 1889; ch. 367, Laws of 1891; sec. 1347b, Stats. 1898; ch. 197, Laws of 1899; ch. 424, Laws of 1903. Such statutes impliedly justify the use of such public highways and bridges by traction engines, without liability on the part of the owners, so long as they comply with the requirements of such statutes. Walker v. Ontario, 111 Wis. 113, 86 N. W. 566. In that case it was held, in effect, that the proper authorities were under obligation to keep up their highways and bridges to a standard of usefulness and safety sufficient for such use. Id. It follows that there was no error in charging the jury that it was the duty of the town to construct and maintain its highways in a reasonably safe condition for pnblic travel by traction engines such as were in use in that part of the country, as well as by wagons and other vehicles. The question as to the insufficiency of the highway at the time and place in question seems to have been properly submitted to the jury, and the verdict in that regard is sustained by the evidence. Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730. 2. Nor can we hold, as a matter of law, upon the facts mentioned in the foregoing statement, that the plaintiff or his employee, Buttress, who was steering the engine at the time of the accident, was guilty of contributory negligence. Gerrard v. La Crosse C. R. Co. 113 Wis. 258, 265, 89 N. W. 125. 3. Error is assigned because the plaintiff was permitted to testify and give his opinion as to-whether Buttress had the necessary knowledge and ability to safely steer a traction engine. It is well settled that “the opinions of witnesses, which do not relate to matters of science, art, or skill in some particular matter or department of business, are [601] not admissible in evidence.” Luning v. State, 2 Pin. 215; Oleson v. Tolford, 37 Wis. 327; Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809; Daly v. Milwaukee, 103 Wis. 588, 590, 79 N. W. 752. “The rule is that' experts are not to decide issues of fact; hence all questions calling for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the jury or the court.” Jones, Evidence, § 374, and cases cited; Maitland v. Gilbert P. Co. 97 Wis. 476, 484, 72 N. W. 1124; Lounsbury v. Davis, ante, p. 432, 102 N. W. 941. So: “Where evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case.’’ Maitland, v. Gilbert Paper Co., supra, and Daly v. Milwaulcee, supra. The facts are undisputed. The engine ran off the dug-way because Buttress, in obedience to the direction of the plaintiff, as mentioned, turned down the steering wheel so far that he could not prevent the engine from going over the bank. Whether such conduct of Buttress was or was not negligence was one of the ultimate facts to be determined by the jury. To allow improper opinion evidence on that question would certainly tend to mislead the jury. By the Court. — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.