Tanner v. Town of Rushford

Wirrsnow, C. I. The special verdict covers fairly and fully all the issues in the case and we find it necessary to consider but three contentions, viz.: first, that no actionable defect in the bridge was proven; second, that if any defect was proven the plaintiff was guilty of contributory negligence in sending his team across the bridge when he knew of the defect ; and third, that the evidence fails to show that the defect in the bridge caused the injury. These questions will be briefly treated in the order stated. 1. This question is somewhat close. Towns do not insure, safety on roads or bridges and not every departure from the safest methods can be called a defect. Ordinarily, however, it is a jury question under proper instructions. There can be little doubt, we think, that the long and substantial calks which are necessarily placed upon the shoes of a horse in winter are quite likely to be caught and wedged into such cracks as existed in the roadway of this bridge. It goes without saying that when a horse’s foot is thus suddenly caught and held, the wrench thereby resulting may easily cause a temporary or permanent injury to the horse. It is clear from-the evidence that the difficulty is avoided in many bridges either by laying the planks close together or by laying them longitudinally or diagonally. We are unable to say as matter of law that there was no actionable defect in the present instance. 2. The defect here was not of so serious or dangerous a character as to render any attempt to cross the bridge palpable negligence; in other words, the danger was not imminent. In such cases the question is whether a reasonably prudent man, exercising ordinary care, would attempt to proceed, and this question is for the jury. Gerrard v. La Crosse City R. Co. 113 Wis. 258, 89 N. W. 125; Dralle v. Reedsburg, 130 Wis. 341, 110 N. W. 210. 3. The evidence justifies the conclusion that the fracture of the ilium and the lameness were the result of the wedging [199] of the toe-calk in the crack and the sudden stopping of the horse’s progress thereby. It appeared that the lameness was first noticed a short time afterwards, that it rapidly grew worse, and that the sixty days’ disability followed without interruption in the symptoms. Probably the jury would have been justified in finding that the injury resulted from a strain incurred while hauling sand after the bridge incident, but this was a question for them to decide. A number of detail errors are alleged, none of which are considered to be of sufficient importance to demand special treatment. By the Court. — Judgment affirmed.