#### Bredlau, Respondent, vs. Town of York, Appellant.

*October 23*

November *11, 1902.*

*Bridges: Injuries from defects: Town officers: Notice of defect: Special verdict: Court and jury: Evidence: Expressions of pain.*

1. In an action for personal injuries, one of the principal questions was whether there was in fact any disease or injury to plaintiff’s liver existing at the time of the trial, and upon this question there was a direct conflict in the evidence. The court did not submit this question to the jury, hut, in one of the questions submitted for special verdict, assumed the existence of such disease or injury. *Held,*error.

2. In an action against a town for injuries caused by the falling of a bridge by reason of decay of one of the timbers, it is *held*to have been error for the trial court to decide, as matter of law, that the offlcers of the town 'ought to have known of the defect.

3. In an action for personal injuries it was not error to permit plaintiff’s daughter to testify that, three days after the accident, the plaintiff appeared to be in pain and uttered expressions indicating present pain, such expressions not being in reply to questions or narrative in their nature.

Appeal from a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.

*Reversed.*

This is an action to recover for personal injuries resulting from an accident upon a defective highway. The evidence shows that the plaintiff, a woman fifty-four years of age, was riding in a buggy upon a highway in the defendant town on the 13th day of August, 1899, with her husband and daughter, and that, while crossing a wooden bridge over a small stream, it suddenly gave way, precipitating the plaintiff about nine feet, to- the bed of the stream; her fall being partially arrested by her clothing catching upon the timbers of the bridge. The attending physician testified that one rib was fractured, but that injury was soon recovered from. The evidence also tended to show that at the time of the trial the plaintiff was suffering from a permanent enlargement or displacement of the liver, and it was claimed that the same was-*555caused by tbe fall from the buggy. On the part of the defendant there was evidence tending to show that there was no injury to or disease of the liver, and, further, that if there was any such injury or disease it was not the result of the accident. A special verdict was rendered as follows:

“1. Was the bridge in question insufficient, and in want of repair, at the time of the accident? *A.*Tes. 2. If you answer the above question Wes/ then did the proper officers of the defendant town have actual knowledge of such insufficiency or want of repair a sufficient time before the accident to have remedied the same in -the exercise of ordinary care ? *A.*Yes. 3. If you answer the first question Wes/ then had the insufficiency or want of repair existed so long before the accident that the proper officers of the town could by the exercise of ordinary care and diligence have discovered such insufficiency and want of repair, and remedied the same? *A.*Yes. 4. Was the plaintiff injured by the accident in the falling of the bridge on August 13th, 1899? *A.*Yes. 5. Was the falling of the bridge the proximate cause of plaintiff’s injuries? *A.*Yes. 5]r. Was the accident at the bridge the proximate cause of the disease or injury to the plaintiff’s liver, of which she complains ? *A.*Yes. 6. If the plaintiff is entitled to recover, at what sum do you assess her damages? *A.*$3,500.00.”

The defendant moved to set aside this verdict, and for a new trial, and also to strike out the affirmative answer to question Ho. 5-J, and insert a negative answer; also to require the plaintiff to remit a part of the damages because the same were excessive. The court required the plaintiff to remit $1,000 from the damages, but denied the other motions, and, the plaintiff having made such remission, judgment was rendered on the verdict for the plaintiff for $2,500, and the defendant appeals.

For the appellant the cause was submitted on the brief of *L. M. Sturdevant.*

For the respondent there was a brief by *J. R. & G. R.*Sturdevant, and oral argument by *J. R. Sturdevant.*

*556Winslow, J.

A special verdict must cover all the controverted and material issues of fact in a case; otherwise, it will not be sufficient to sustain a judgment. It is evident that the verdict before us does not do that. The most serious questions in the case were whether there was in fact any disease or injury to the plaintiff’s liver existing at the time of the trial, and, if so, whether it was the result of the fall from the bridge. Upon the first of these questions there was a direct conflict in the evidence. The plaintiff’s experts testified 'that it was enlarged and diseased, while the evidence of one of the experts sworn on behalf of the defendant was that there was no perceptible enlargement; that it hung slightly lower than its normal position, but that fact did not indicate any disease of the liver. So this question was directly in issue, and was very material, because it is evident that the larger part of the damages awarded by the jury must have been awarded on the theory of a permanent injury to the liver. It could not, therefore, be assumed by the court that such a disease or injury existed, as was done in question No. 5-J. It should have been submitted to the jury by a separate question, and the failure to submit it is prejudicial error.

There was manifest error, also, in the charge of the court upon the third question. The principles of law applicable to this question are few and simple, and could easily have been given to the jury with clearness and brevity. Town officers are required, to use reasonable and ordinary care in looking after the highways and bridges of the town, and this covers the duty of inspection of bridges and culverts which have been long in use and are liable to decay. A failure to exercise this reasonable and ordinary care is a failure of duty, but it is only in extreme cases that the court can say that there has been a failure of duty in this regard. It is ordinarily a question for the jury. In the present ease, the court charged that

> “If the bridge was defective and unsafe on account of decay of the timbers and considering the length of time the *557bridge bad been built *this condition ought to have been anticipated and hnown by the O'fficers of the town, using ordinary-care and precaution ”*

Tbe evidence in tbis case showed beyond dispute that the bridge went down on account of decay of what is called tbe “swing beam.” Bearing tbis fact in mind, tbe only reasonable meaning which can be given to tbe foregoing instruction is that tbe court decides, as matter of law, in the present case, that tbe officers of the town ought to have known of the-defect. It is true that the court immediately afterward told tbe jury that if tbe unsafe condition bad existed so long that, if tbe officers bad given tbe matter reasonable attention, they must have discovered the defective condition, then they should be held to have notice of tbe defect, and that, if such was tbe situation here, then question ETo. 3 must be answered in tbe affirmative. Tbis latter instruction, however, can hardly be said to remove tbe sting from tbe first instruction above given. At best, tbe instructions seem to have been confused and confusing, and we cannot say that tbe latter one must have corrected tbe error in tbe former one, and that tbe jury could not have been misled; it rather seems that the injury must have been left in a painful state of uncertainty on tbe question.

Error is claimed because tbe plaintiffs daughter was allowed to testify as to expressions of pain uttered by her mother while on her way home, three days after the accident; also that her mother appeared to be in pain. It does not appear that these expressions were in reply to questions* or that, they were in any sense narrative in their nature, but they seem to be mere expressions or remarks indicating present pain.- Under tbe rule laid down in *Keller v. Gilman,*93 Wis. 9, 66 N. W. 800, there was no error in tbis ruling.

*By the Gouri.*— Judgment reversed, and action remanded for a new trial.