Luedke v. Town of Mukwa

62 N.W. 931, 90 Wis. 57, 1895 Wisc. LEXIS 232

• Court: Wisconsin Supreme Court
• Decided: April 3, 1895
• Status: Published

Opinion

Newman, J.

The testimony is abundant to sustain the finding that the highway was defective. There was much «evidence tending to show that there were deep, sharp holes between logs, caused by tbe -wearing out or rotting of tbe logs of wbicb tbe road was made. That these boles bad been there long enough for vigilant officers to discover their existence and to remedy them, is made clear by tbe fact that they were not produced by recent casualty but by tbe slow process of tbe wearing out and rotting of tbe logs.

It was, too, a fair question for tbe jury whether there was contributory negligence. It was not, as matter of law, negligence to travel carefully over that road in its then actual condition. Nor was it, as matter of law, negligence to ride over that road, in its then actual condition, in that wagon, out of repair as it then was, and with tbe load it then bore. It is not clear that tbe broken spring or tbe load wbicb tbe wagon bore bad any agency in producing tbe accident. Apparently, it would have been just as likely to happen if tbe spring bad been unbroken and tbe load bad been bgbter. • Whether tbe seat was sufficiently secured to tbe box ivas also a question for tbe jury. Tbe law has no standard by wbicb to determine it. Such care as ordinarily prudent and experienced people use is its only gauge.

There is no error in tbe record for wbicb tbe judgment can be reversed.

By the Court.— Tbe judgment of tbe circuit court is affirmed.