#### Dralle, Respondent, vs. Town of Reedsburg, Appellant.

*September 18*

October *5, 1909.*

*■ Highways: Defects: Personal injuries: Pleading: Variance: Nature of injuries: Evidence: Opinions: Hypothetical Questions: Cross-examination: Discretion: Instructions to jury: Damages for loss of time: Married women: Costs.*

"1. In an action for injuries caused by defect in a highway the complaint alleged that plaintiff received “permanent injuries; was rendered sick, sore, bruised, maimed, and her life endangered, and has suffered and still does suffer severe and excruciating pains.” The complaint included the notice of injury served as required by see. 1339, Stats. (1898), and stated that it set forth the injuries. This notice stated that plaintiff was thrown to the ground, “causing severe bruises to my legs and shoulders, and inflicting severe internal injuries.” The claim for damages required by sec. 824, Stats. (1898), also made a part of the complaint, was for “injuries, suffering, both mentally and physically.” *Held,*that the complaint, notice, and claim should be construed together as a pleading, and so construed the allegations were sufficient to permit the admission of evidence of injuries to plaintiff’s side, back, and ribs, and also of an atrophy or wasting of the muscles of the back, causing curvature of the spine and having a tendency to increase.

'.2. A defendant who neither demands a bill of particulars nor moves to make the complaint more definite and certain cannot, by objection at the trial, exclude evidence which is comprehended within the broad generalities of the complaint.

*3203. The notice required by sec. 1339, Stats. (1898), need not specify the particulars in which the party is injured nor contain any description of the injuries.

4. In an action for personal injuries, a question to an expert witness as to how the injury affected the plaintiff was proper, the word “injury” being used to designate the contusion, bruise, or trauma in question, and not the invasion of legal rights which might have occurred at the time of the accident.

5. An objection to a long hypothetical question on the ground that. it does not contain all the elements of fact testified to will be considered on appeal only so far as it specifies the facts claimed to be omitted.

6. In a hypothetical question as to whether the injury sustained by plaintiff was a sufficient producing cause of her physical condition as found by the witness, it was not necessary to include the fact that plaintiff had given birth to seven children, all of whom died in infancy or shortly thereafter.

7. It was not error to exclude the opinion of a witness as to whether it would have been possible or practicable for plaintiff to drive-over a part of the highway lying outside of the traveled track at the place of the accident, in the absence of evidence that, plaintiff had an opportunity to leave the traveled track and had such knowledge of the defect therein as would require a person exercising ordinary care to leave the track and drive outside-thereof.

8. Where, from the questions asked, an attempt to extend a cross-examination to matters not covered by the direct examination ■ could fairly be inferred, it was not an abuse of discretion to limit the cross-examination rather strictly.

9. An instruction that, in determining whether or not the highway was defective at the place in question, the jury should consider the amount of labor and money which must be expended to obviate the alleged defect, and whether such expense would be so-excessive as to render the change impossible or impracticable, is *held*(whether correct in law or not) to have been properly refused as inapplicable to the facts in this case. '

10.Refusal to instruct the jury that plaintiff was not entitled to recover for loss of her time was not error in this case, in view of other instructions given and of the fact that no claim for such, recovery was made and no evidence offered on the subject

[11. Whether, under sec. 1339, Stats. (1898), as amended by ch. 305, Laws of 1899, providing that a husband shall have no right of' action on account of injuries received by his wife by reason of a defect in a highway, a wife may recover damages for loss of : her time, not determined.]

*32112. Costs taxable for drawing a bill of exceptions should not be held to include that part thereof composed of a transcript of the reporter’s notes, drawn by the reporter, for the cost of which the successful party has already been fully reimbursed by the other party.

13. Although the costs taxed for drawing a hill of exceptions may in this case have included something more than the improperly allowed costs of the reporter’s transcript, this court will not count folios to determine that fact, counsel having furnished no separation or basis for separation of the items.

Appeal from a judgment of the circuit court for Sauk-county: E. Eat SteveNS, Circuit Judge.

*Modified and affirmed.*

*Daniel H.*Grady, for the appellant.

Eor the respondents there was a brief by *Groiophorst, Evans & Thomas,*and oral argument by *E. A. Evans.*

TimliN, J.

In this action for damages resulting from, a defective highway the respondent pleaded that she “was thrown violently from the said wagon and struck on the rocks hereinbefore referred to, receiving therefrom severe and, as she is informed and verily believes, permanent injuries; . . . was rendered sick, sore, bruised,y maimed, and her life endangered, and she has suffered, and still does suffer, severe and excruciating pains.” Attached to the complaint and made part thereof is a copy of the notice served by respondent upon the town and required by sec. 1339, Stats. (1898), in which, after describing the place where the accident happened and the nature of the defect, she says:

> “Thereby throwing me out of the wagon and causing me to fall with great force upon the ground, causing severe bruises to my legs and shoulders, and inflicting severe internal injuries.”

Also made part of the complaint is the claim for damages filed before the town board of audit as required by law, in which she states that she makes a claim for injuries result*322ing from a defective highway concerning wbicb sbe bad given a written personal notice. Sbe further states:

> “I claim damages against tbe town of *Reedsburg*for injuries, suffering, both mentally and physically, loss of earning capacity, both past and future, loss of time, etc., expense incurred and to be incurred for doctoring,” etc.

As a witness on tbe trial tbe plaintiff offered her testimony to tbe effect that by tbe fall in question sbe sustained injuries to her side, ribs, and back, to wbicb defendant objected in so far as it pertained to any injuries other than those expressly mentioned in tbe notice of injury and tbe claim filed with tbe town board, namely, an injury to tbe leg and shoulder and internal injuries. This objection was overruled. Sbe offered tbe testimony of her attending physician, who testified to an atrophy or wasting of tbe muscles of tbe back, causing curvature of tbe spine and having a tendency to increase. A similar objection to tbe admission of this testimony was made and overruled. *Mauch v.*Hartford, 112 Wis. 40, 87 N. W. 816; *Schmidt v.*Pfeil, 24 Wis. 452; *Delie v. C. & N.*W. *R. Co.*51 Wis. 400, 8 N. W. 265; and a number of cases from other courts, are cited to show error in this ruling.' Sec. 1339, Stats. (1898), wbicb imposes this liability upon tbe town, requires as a condition precedent tbe service upon one of tbe town supervisors of a notice stating tbe place where such damage occurred and describing generally tbe insufficiency or want of repair wbicb occasioned it and that satisfaction therefor is claimed of such town. Tbe statute does not require that this notice specify tbe particulars in wbicb plaintiff was injured nor that any description of her injuries be. given therein.

From tbe excerpts quoted it will be seen that tbe aver-ments of tbe complaint in this respect were very broad and general, and, although *the*complaint incorporated therein this notice and further stated that tbe notice set forth tbe injuries of tbe respondent, tbe notice itself in this respect is very *323broad and general. It speaks of bruises to ber legs and shoulders and severe internal injuries, and the claim filed with the board of audit refers to this notice and claims damages for injuries and suffering, both mental and physical. These three papers presented together as a pleading must be construed together, and neither can be tested by any other rule than that relative to the sufficiency of pleadings. Under that rule there was sufficient in the complaint notwithstanding the exhibits attached to and incorporated therein to permit the admission of this evidence. *Curran v. A. H. Stange Co.*98 Wis. 598, 14 N. W. 377; *Delie v. C. & N. W.*22. *Co.*51 Wis. 400, 8 N. W. 265. The complaint was doubtless subject to a motion to make definite and certain in this particular or the defendant could have demanded a bill of particulars, but, having waived these remedies, it could not, by objection at the trial, exclude this evidence which is comprehended within the broad generalities of the complaint.

One of the expert witnesses was asked how the injury affected respondent, and this question was allowed to be answered against objection by the appellant. Erom an examination of the testimony preceding the question we are inclined to agree with counsel for respondent that the word “injury” was then being used to designate the contusion, bruise, or trauma in question, and not the invasion of legal rights which might have occurred at the time of the accident. So construing this word there was no error in the ruling. The objection to a long hypothetical question on the ground that it did not include all the elements of facts testified to in the case and upon other grounds not necessary to mention was followed by a question from the court to counsel making the objection, asking counsel what facts he referred to which were not in the hypothetical question. Counsel referred to the fact of the existence of a scrofulous goiter for twelve years, but the question expressly assumed that respondent had been afflicted with goiter for a number of years and that it had increased *324some from tbe time of tbe injury. Counsel also mentioned tbe fact tbat plaintiff bad given birth to seven children, all of wbom died in infancy or shortly thereafter. This fact was not necessary to be included. Tbe objection made was insufficient to raise any other question not already considered. And tbe same is true of tbe objection to tbe hypothetical question propounded to Dr. Edwards. *Odegard v. North Wis. L. Co.*130 Wis. 659, 677, 110 N. W. 809; *Cornell v.*State, 104 Wis. 527, 80 N. W. 745.

Evidence tbat there existed a space to the right of tbe traveled track in tbe highway in question twelve feet in width and a little higher than the traveled track was admitted, but the court excluded evidence of a witness who was asked to state whether this was such a piece of highway as would permit its use for the driving of a vehicle outside and to the right of the traveled track; also whether it was possible or practicable to drive over this strip of twelve feet at the place where plaintiff was injured.

We do not think that any prejudicial error can be predicated upon this ruling. If the jury had before it the condition and measurements of the traveled track and the opportunities to turn out and avoid the rock in question, they would not be aided much further by the opinion of the witness upon the question asked, even if we concede that such opinions were competent. The item of evidence is quite remote, and, unless coupled with proof that the plaintiff had opportunity to turn out of the traveled track and such knowledge of the defects in the traveled track as would require a person in the exercise of ordinary care to depart therefrom and travel on this strip, the opinions of a witness as to the practicability or feasibility of so doing would be quite immaterial.

A physician called by the respondent testified that he examined the respondent shortly after the injury and found no atrophy of the muscles of the back or curvature of the spine. The court limited the cross-examination of this witness rather *325strictly, but the questions asked were very broad, and were no doubt understood by the court to attempt to extend the cross-examination.to other matters not covered by the direct examination. Whether this was intended or not the court evidently so understood, and this inference could fairly be made from the questions asked. There was no abuse of discretion in this ruling.

Error is assigned because the court refused the request of the defendant that the jury be instructed as follows:

> “You are further instructed that, in determining whether or not the highway at the place in question was defective, you are to take into consideration the amount of labor and money which must necessarily be expended to obviate the condition wherein the alleged defect consists, and whether or not the same would be so excessive as to render impossible or .impracticable a change of such condition.”

Whether or not this was correct in law we need not determine, because there was no evidence in the case to which such instruction was applicable. And it is in itself inconsistent with the theory of the defense that there was a strip twelve feet in width to the right of the traveled track upon which the plaintiff might safely have driven. The road in question is over a hill called Buckley’s Hill, and is about nine feet wide between the raised sides. The wagon track is about six feet wide. On the right hand the bank ran up four, six, or eight feet high, and on the left hand there was a bank sixteen inches to two feet high extending up and then an abrupt drop. A rock extended across the wagon track diagonally. The right wheel of the wagon would strike the rock first, and from the bottom of the rut to the top of the rock was about eight to twelve inches. To the right of the traveled track the rock projected above the sand from four to six inches and about .as much on the left. This shows no situation calling for such an instruction.

The court also refused the request of the defendant that *326tbe jury be instructed that plaintiff was not entitled to recover for loss of time. There was no evidence offered on this subject, and, so far as the record shows, no claim made that she was entitled to recover for any such item of damages. The court did instruct the jury with reference to the fourth question of the special verdict, the form of which was: “What sum of money will compensate the plaintiff for the injury she-has received ? ” In such instructions he told the jury to keep in mind the condition of the plaintiff’s health before and after the injury, the nature and extent of the injuries as disclosed by the evidence, and to include compensation for the actual injury to the plaintiff’s person, and for the physical and mental pain and suffering undergone by reason of the injury, and not to allow any sum for expenses incurred in the care or medical attention of the plaintiff, and also with reference to future impairment of health.

The law as it now exists with reference to the liability of towns — that is, sec. 1339, Stats. (1898), as amended by ch. 305, Laws of 1899'— cuts off all right of action on the part, of the husband on account of injuries received by the wife, and renders the reason given for the exclusion of such damages in *Bading v. Milwaukee E. R. & L. Co.*105 Wis. 480, 81 N. W. 861, no longer appropriate. Cutting off .a husband’s, right to recover such damages does not necessarily confer lipón a wife the right to recover; consequently this question is left for future consideration, and, there being no claim for damages before the jury and no evidence to warrant such recovery, the refusal of the requested instruction was not error. We-cannot say upon the evidence that the damages awarded by the jury are excessive within the rules governing the consideration of such questions.

In the taxation of costs the respondent was permitted to-tax an item for drafting the bill of exceptions used by her upon the first appeal in this case, reported at 130 Wis. 347, 110 N. W. 210. On the reversal of that judgment the respondent presented as an item of disbursements the whole *327bill of tbe court reporter for tbe original and copies of tbe transcript wbicb constituted tbe major part of tbe bill of exceptions, and tbis expense was paid by tbe appellant. Tbe clerk allowed tbe respondent to tax for drawing that part of tbe bill of exceptions so made up. Proper exception was taken to tbe ruling of tbe clerk, tbe matter brought for review before tbe circuit court, wbo by- order allowed tbis item of costs to tbe respondent, and tbe evidence and exceptions on tbe taxation of costs are preserved in tbe bill of exceptions. Tbe statute (sec. 2921) provides for tbe taxation of costs for drawing bills of exceptions, but tbis cannot' be beld to cover a bill of exceptions or tbat part thereof composed of a transcript of tbe reporter’s notes drafted by tbe reporter for tbe cost of wbicb tbe respondent bad theretofore been fully reimbursed by tbe appellant. Tbe amount of tbis item, as stated in tbe printed case, is $146. Tbis may include something more than tbe reporter’s transcript, but counsel for respondent has furnished us no separation, or basis for separation except by counting folios, wbicb we decline to do.

Eor tbis error in taxation of costs tbe judgment of tbe circuit court must be modified by striking therefrom tbe item of $146 above mentioned, and, as so modified, affirmed, tbe costs of tbis court to be taxed against tbe respondent.

*By the Court.*— It is so ordered.