Dralle v. Town of Reedsburg

Kerwin, J. It is insisted on the part of the appellant that the court erred in directing a verdict for the respondent. This contention involves the negligence of the respondent and the contributory negligence of the appellant. 1. The place where the injury occurred was a public highway under the control of the respondent, much used for public travel, and the first question presented is whether such highway was defective at the place where the injury complained of was received. If the highway in question was defective, there is no doubt but that there was sufficient evidence of notice to the respondent. In respect to the defective condition of the highway, the evidence tends to show that there was a solid ledge of rock extending across the traveled track of the highway, on such an angle as to cause one wheel of a wagon to strike it first; that the roadway Avas narrow so' that it was difficult, if not impossible, to turn out and avoid the rock; that the rock stood up perpendicular with the roadbed, did not slant, and was from four to ten inches high; that the rock ran clear across the traveled track and into the hill.. [350] 'One witness testified that the rock stuck up out of the ground from eight to ten inches, and that there was no way to turn out in order to avoid it. Appellant testified that, when one wheel struck the rock, it gave such a jerk that she was thrown out of the wagon. We think it clear that there was sufficient evidence to support a finding of the jury that the higlrway was defective and unsafe, and that respondent was negligent in so maintaining it. Hebbe v. Maple Creek, 121 Wis. 668, 99 N. W. 442; Wheeler v. Westport, 30 Wis. 392. 2. The important question in the case is whether the appellant was guilty of contributory negligence as a matter of law. If not, the court erred in taking the case from the jury and directing a verdict for respondent. There is evidence that appellant traveled over this highway, both by team and on foot, for several months prior to the injury, during which time it was in substantially the same condition as at the time of the injury. It also appears that this highway had been much traveled by the public continuously up to the time of the injury. It also appears from the evidence that appellant had ridden safely over it on a load of potatoes before the time of the injury, but she did not know whether she occupied the same position as at the time of the injury. She went “lots of times” on a load with the same team and driver. When she fell off she was riding in a lumber wagon, which had a double box piled even full with sacks of potatoes, the sack upon which she was sitting a little higher up, but the whole sack not above the rest, just a part of it where she sat, with anothei sack to her back and one which she braced her feet against. She was seated in this position in the middle of the wagon when the wheel struck the rock and she was thrown from the wagon and injured. Appellant testified that when her husband, who was driving, approached the rock he drove slower; '“he drove real slow, real careful. I hung tighter all I could and braced myself;” that when the wheel struck the rock it ■gave such a jerk that her hold was torn away and she was thrown out of the wagon. It is insisted by counsel for re [351] spondent that appellant assumed a dangerous position knowing the condition of the road, and that had she been sitting in front where she could have seen when the wheel would come in contact with the rock, or had her arms or limbs been free, she would not have been injured. Rut there is evidence that the position of appellant on the load was a reasonably safe one. She sat in the middle of the wagon with a bag filled with potatoes to support her back and one to brace her feet against, and her husband driving very slowly and carefully at the time of injury, and she holding onto the sack with both hands, and it does not appear that her arms or limbs were not free. True, appellant testified that she wa.s clothed warmly, had her winter cape on and was wrapped in..a blanket, but that her feet were not wrapped up in the blanket) but she had it over her lap. She had her feet braced against the sack and was holding on with her hands. We are cited to Nicks v. Marshall, 24 Wis. 139, on the point that appellant was guilty of contributory negligence in taking a dangerous position on the wagon. But in that case it appeared clearly that the plaintiff assumed a dangerous position upon an unbound load of hay thrown loosely on the wagon bos, being on the hind end on his knees facing the rear of the wagon, and the court said, if he had been riding with his face in the direction the team was traveling, “he would have been likely to see the rock in the highway and that the wheel would probably strike it, and thus have been prepared for the ‘severe jolt’ of the wagon when it passed over the obstruction.” So it appears that the case cited is not controlling. The fact that appellant knew of the defective condition of the highway .in the case before us was not sufficient as a matter of law to bar recovery. Kelley v. Fond du Lac, 31 Wis. 179; Gerrard v. La Crosse C. R. Co. 113 Wis. 258, 89 N. W. 125. True, as said by this court in Gerrard v. La Crosse C. R. Co., supra: “The defect may be so serious or dangerous that a court would be justified in .saying that any attempt to proceed would [352] be negligence, but in all other cases the question is whether a reasonably prudent man, exercising ordinary care, would attempt to proceed under the circumstances, and, if so, whether the plaintiff used that additional care which such a man would exercise in view of his knowledge of the danger.” In the case before us the highway was in constant use by the public, and it cannot be said upon the evidence produced as a matter of law that it was so imminently dangerous as to make any attempt to pass over it negligence. If the appellant was exercising such care as persons of common and reasonable prudence would ordinarily exercise under such circumstances, she was not guilty of negligence. Whether she was or not, was, we think, a question for the jury. Nelson v. Shaw, 102 Wis. 274, 78 N. W. 417. It 'follows that there was sufficient evidence to send the case to the jury on the negligence of respondent and the contributory negligence of appellant, and therefore the court below erred in directing a verdict for the respondent. By the Gourt. — The judgment of the court below is reversed, and the cause remanded for a new trial.