Roeser v. Sauk County

SiebecKKR, J. The complaint must be liberally construed. The allegation that the culvert was so defectively constructed as to render the highway unsafe for travel by the smallness of the culvert, the erection of the twelve-inch cement curbing at the ends, and by allowing the same to be wholly obscured by weeds as to be invisible to travelers using the traveled track or when the traveler was obliged to drive outside the traveled track to permit other vehicles to pass him near or on the culvert, is sufficient to allow the plaintiff to show that the highway was insufficient and not reasonably safe for public travel within the calls of the provisions of see. 1339, Stats. Wheeler v. Westport, 30 Wis. 392; Sweetman v. Green Bay, 147 Wis. 586, 132 N. W. 1111; Hebbe v. Maple Creek, 121 Wis. 668, 99 N. W. 442; Carpenter v. Rolling, 107 Wis. 559, 83 N. W. 953. Whether or not the alleged defect was the proximate cause of the injury and whether or not the driver was guilty of contributory negligence which releases the county from any liability, are questions which necessarily depend upon the facts and circumstances of the case. The allegations of the complaint do not set forth a state of facts which shows as matter of law that the driver was guilty of contributory negligence or that the alleged defect of the highway was not the proximate cause of the injury. By the Court. — The order appealed from is affirmed.