Miner v. Town of Rolling

ViNJE, J. Tbe contention of plaintiff that tbe highway was insufficient as a matter of law cannot be sustained. Tbe town made a fill of about four feet at tbe deepest place across a depression of thirty feet in width and provided u bard, smooth surface eleven feet four in,ches wide at its narrowest point, or of twelve feet if defendant’s .evidence is believed. Such highway tbe jury might well find sufficient in view of tbe character of tbe country through which tbe highway ran. True, it was one of tbe main traveled highways of tbe town and bad considerable travel upon it. Tbe fact that two cars could not pass at all upon part of tbe fill and could not pass safely upon any part of it did not make it defective as a matter of law. It is common knowledge that there are, and under present conditions must be, many places, especially upon fills, where cars cannot pass each other. This fill was only thirty feet long upon a straight part of tbe highway where cars coming in either direction could be seen for a considerable distance, so it was easy for one car to wait until tbe other passed tbe fill if they met at that place. In in [216] structing upon the question of the sufficiency of the highway the court said: “You should also, in answering this question, take into consideration the ravine, and character of the fill, and if it concealed the nature of the ground, and any other object or obstacle, and determine whether they were in such close proximity to the traveled and worked portion of the road and so connected with it as to make it defective or unsafe, also the grade of the road and all surrounding facts and circumstances as shown by the evidence, and answer the question by ‘Yes’ or ‘No’ as you think the evidence warrants.” This was a correct and adequate instruction which left to the jury to consider and pass upon the sufficiency of the road in view of the depth of the fill, "the precipitous sides, the absence of a barrier, the presence of the growing brush, and all the other facts and circumstances disclosed by the evidence. In view of the evidence on defendant’s part tending to show that plaintiff’s car left the traveled track before the fill was reached, no error is perceived in the court charging the jury on the subject of a traveler voluntarily or without cause leaving the traveled track. The evidence would have warranted the jury in finding that the car did not go over the embankment at all, but down the side of the ravine. In the court’s instruction relating to the sufficiency of the highway are found expressions to the effect that if the town prepares a traveled track reasonably safe and wide and sufficient for travel it is not liable if accidents occur. This is excepted to and claimed to be reversible error on the ground that it informs the jury of the effect of their answer, and Van de Bogart v. Marinette & M. P. Co. 127 Wis. 104, 112, 106 N. W. 805, is relied upon to sustain the claim. The subject of when information disclosing the effect of the jury’s answer constitutes reversible error was quite fully treated in the later case of Banderob v. Wis. Cent. R. Co. 133 Wis. 249, 113 N. W. 738, where the cases are collected and discussed. We shall make no attempt to treat the subject anew, but con [217] tent ourselves with saying that the present case falls under subdivision (3) of that case, found on page 287, stating that “the giving to the jury of general rules of law appropriate to the particular question of the special verdict in connection with which such rules are given is not error.” The general rule of law that if a town furnishes a sufficient highway it is not liable for accidents occurring thereon, if not known to the jurors before they sat in the case, certainly must have been made plain to them by the claims and arguments of counsel long before the court instructed them. If it was not, either the attorneys failed to properly try the case or else the jury were so dense that they could be neither harmed nor benefited by any instruction of the court. The trial court disposed of the claim that the verdict was perverse because the jury assessed the damages at “nothing,” by stating that “it conclusively appears that the jury understood the force and effect of its answer to the first question, and by holding the road sufficient and safe for travel by persons using ordinary care they naturally concluded that plaintiff was entitled to no damages and so answered.” It was conceded that plaintiff sustained some damage and the jury undoubtedly so understood. That being the case, the explanation given by the trial judge of the jury’s answer seems the only logical and rational one. Tie was much better able to judge of the jury’s conception of the case than we are, and we shall adopt his explanation as ours. This disposes of all material errors assigned that could have adversely affected the jury’s action, with the result that no prejudicial error is found. By the Court. — Judgment affirmed.