Blaschke v. City of Watertown

275 N.W. 528, 226 Wis. 1, 1937 Wisc. LEXIS 268

• Court: Wisconsin Supreme Court
• Decided: October 12, 1937
• Status: Published

Opinions

Rosenberry, C. J.

Many questions are raised by the appealing defendant. We have considered them, but deem only one worthy of discussion. It appears without dispute that the highway in question, being Hall street, is used only by the farmers adjacent to it and persons having business with them. On each side of “the north half” of Hall street are fields inclosed by fences and used for farm purposes. The north half of Hall street is narrow, being approximately twenty feet in width between the fences. The traveled track is about six feet in width. At the time of the accident there was a rut or washout‘from five to seven inches deep, fourteen to eighteen inches in width, running along the left wheel track on the traveled portion of the north half of Hall street. It began at the' regular driveway leading in to the Lutovsky property and extended northward a distance of about two hundred feet. This rut or washout had existed for some years.

The question is whether or not the rut or washout constituted a defect in the highway under the circumstances. The court submitted the following question:

“On September 23, 1935, at the time and place where the accident happened, was Hall street in such condition that it was not reasonably safe for public travel?”

In connection with this question, the court instructed the jury as follows:

“In connection with this question and the two succeeding questions you are instructed that a street or highway is defective and unsafe for public travel when it is in such condition that it is not reasonably safe for travelers to pass over the same while exercising ordinary care. A street or highway which is open for public travel must be kept reasonably safe for all the usual and ordinary kinds of travel in that locality. A highway or street is not reasonably safe for public travel when it is in such a condition that an ordinarily prudent officer charged with the care of the highway, who knows of the existing condition, ought reasonably to anticipate or expect that some injury to an ordinarily careful traveler probably would be caused thereby. If it be in such condition, either from lack of proper and sufficient construction in the first instance, or because it has become out of repair from use or from the action of the elements, then within the meaning of this question it is defective and insufficient for public travel thereon.

“In considering this question of whether it was reasonably safe for public travel, you should take into consideration the topography of the locality, the development of the community, the standard of road construction which was in vogue or which this part of the country has attained, as well as the amount and character of the traffic on said highway.”

The jury answered the question “Yes.”

It is the contention of the appealing defendant that the trial court should have held, as a matter of law, that a rut or washout fourteen to eighteen inches wide and five to seven inches deep, two hundred feet in length, does not, considering the amount and character of traffic which the highway in question was supposed to carry, constitute a defect in the highway. The plaintiff contends that it was a jury question.

The liability of the appealing defendant, if any, is imposed by sec. Si. 15, .Stats., which, so far as material, is as follows:

“If any damage shall happen to any person ... by reason of the insufficiency or want of repairs of any . . . road in any . . . city . . . the person sustaining such damage shall have a right to- sue for and recover the same.”

In Prahl v. Waupaca (1901), 109 Wis. 299, 302, 85 N. W. 350, 351, a case ¿rising under sec. 81.15, it was contended on behalf of the defendant that the evidence did not establish insufficiency or want of repair of the highway so as to render the defendant liable. The court said:

“That question is always one for the jury, unless the conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy. If, in the exercise of reason and with impartial judgment, a jury has found the highway to be insufficient, their finding must stand, unless we can say that the evidence, and the legitimate inferences therefrom, are so clear and decisive that no reasonable or unbiased man would have reached that conclusion. . . . When the condition shown is such that different minds may reasonably draw different inferences and arrive at different conclusions, the jury, and not the court, must make the ultimate determination.”

See also Sweetman v. Green Bay (1912), 147 Wis. 586, 132 N. W. 1111; Johnson v. Eau Claire (1912), 149 Wis. 194, 135 N. W. 481, and cases there cited.

In this case the jury and the trial court were of the view that the highway at the point in question was insufficient. Thirteen men having upon the' facts concluded, applying the correct rules of law thereto, that the highway was insuffi-dent, it is rather difficult for this court to say that the minds of reasonable men could come to but one conclusion upon the evidence. Such a situation was presented in Agen v. Metropolitan Life Ins. Co. (1900) 105 Wis. 217, 223, 224, 80 N. W. 1020, 1023. The court said:

“The jury could not have said, as men, that the circumstances did not show suicide so as to leave no reasonable probability to the contrary; therefore it was not permissible for them to say it as jurors and have that stand as a verity in the case.’T

Nevertheless, the jury found for the plaintiff, the verdict of the jury was sustained by the trial court, and two justices of this court were of the same view. Yet the court by three justices said:

“Different minds cannot reasonably come to different conclusions from the evidence on that subject.”

No doubt the facts in this case are such that a verdict of a jury either way would have been sustained by the evidence. There is no absolute standard to be applied in cases involving insufficiency or want of repair of highways. As was indicated by the instruction of the trial court, it is a relative matter depending upon where the highway is situated, the amount and character of use to which it is subject, and other factors. For the reasons stated, the judgment must be affirmed.

By the Court.

Judgment affirmed.