Shier v. Village of Gillett

Doerfler, J. Defendant’s counsel contend that ho 'negligence was shown on the part of the defendant, and that the court should have directed a judgment in its favor as a matter of law. It is also contended that plaintiff was guilty of contributory negligence as a matter of 'law. A careful examination of the evidence convinces us that that part of the verdict acquitting the plaintiff of contributory negligence and finding the. defendant guilty of negligence is amply supported, if we assume that the defendant village is charged-with the duty of maintaining this highway. In his complaint the plaintiff alleges the existencé of this highway in the village; that it was defective and out of repair; that such defect existed for a period of upward of three weeks prior to the time of the accident, during all of which time such defect was known to the village and its officers aharged with the duty of inspecting and repairing highways, and that the officers wholly failed and neglected to repair the same. Then follows an allegation of the manner in Which the accident happened, all substantially in harmony with the statement of facts heretofore recited. The defendant in its answer admitted the incorporation of the village and that Main street is an east-and-west highway running through said village. Further answering, the defendant denied each and every allegation contained in plaintiff’s complaint, and further alleged that the injury was [395] caused by the negligence, of the plaintiff, which proximately contributed to the happening of the injury. This was the second trial of the action. On the first trial it was assumed by both parties that the obligation to maintain the highway rested on the village. Before any evidence was introduced on the second trial, the defendant moved to amend its answer by alleging that at the time of the injury the highway constituted a part of the state trunk highway, known as highway No. 22, which in law it was the duty of the county, and not of the village, to maintain. Plaintiff’s counsel objected to this amendment upon the ground of surprise and that he would be unable to meet this allegation unless a continuance be granted. The court then notified defendant’s counsel that if he insisted upon the amendment the case would be continued for the term. Upon such ruling of the court the amendment was withdrawn and the trial proceeded. While introducing evidence in behalf of the defense, defendant’s counsel attempted to show that the highway in question was a state trunk highway and that the defendant was not charg-ed with the duty, in law, to maintain said highway, and that the liability, if any existed, was the liability of the county. To the introduction of such evidence plaintiff’s counsel duly objected and such objection was sustained by the court. This raises the issue whether the defendant, under the state of the pleadings, could properly introduce evidence showing that it was the duty of the county and not of the village to maintain this highway, and that the liability, if any, was one with which the county was properly chargeable and not the village. We may assume that the complaint, liberally construed, charges the defendant village with the duty of maintaining the highway. The defendant, however, in its answer, merely admitted the incorporation of the village and the existence of the highway in the village. With the exception of these admissions the defendant’s answer [396] constituted a general denial. That clearly raised an issue of the defendant’s liability, and under this answer the defendant could properly prove that it was not charged with the duty of maintaining this highway and that it was guilty of no negligence in the premises. Hilliard v. Wis. Life Ins. Co. 137 Wis. 208, 117 N. W. 999; Timp v. Dockham, 32 Wis. 146; Wheeler v. Billings, 38 N. Y. 263; Greenfield v. Massachusetts Mut. L. Ins. Co. 47 N. Y. 430; Weaver v. Barden, 49 N. Y. 286; 1 Ency. Pl. & Pr. 817. Sec. 1317 as it appears in the Statutes of 1919 worked a material change in the maintenance of certain highways constituting a part of the trunk system lying within a county, and, in accordance with the provisions thereof, made it the duty of the county to maintain these highways. Under said section of the statutes defendant’s counsel attempted to prove that the highway in question was a part of such trunk system and that at the time of the injury the duty devolved upon the county to maintain the same in reasonable condition of repair. This the defendant was not permitted to show, and such refusal on the part of the court was error. Not only is the defendant authorized under his pleading to establish the facts so attempted to be proven, but it became the duty of the plaintiff, in order to establish his case, not only to allege the facts constituting a liability on the part of the village, but to prove the same. By the Court. — The judgment of the lower court is reversed, and the cause is remanded with directions for further proceedings in accordance with this opinion. On March 24, 1925, the mandate was amended to read as follows: Judgment of the lower court is reversed, and cause remanded with directions for a new trial.