Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1870-09-27
Towns and their Liabilities for Defective
Highways.

has been the one of Alfred Il. Groom,
plaintiff, rs. Town of Waterloo,
defendant.
In this action the plaintiff, Groom,
sought to recover of tho defendant,
town, for the loss Of an eye from
the scratch of thorn bush while
travelling upon one of the highways
in said town; that the highway in
question was insufficient, or in want
of repair, contrary to the statute in
such case made and provided, the
plaintiff laying his damages at the
sum of five thousand dollars The
defendant, town, denied all liability
in the premises.
The action was very ably prose-
cuted and contested, Bushnell &
Clark and w. Il. Carter appearing
for the plaintiff, and w. p. Dewey
and j. Allen Barber conducting the
defence. The suit was called on
Tuesday last and closed on Friday
night. The argument of Mr.. Dewey
before the jury on the part of the
defence was quite lengthy, and one
of the most logical and eloquent
speeches heard in court for many q
year. The jury after a session Of
about half hour returned verdict
for the plaintiff for one hundred
dollars.
For the information of Town au-
thorities we publish below the charge
of Judge Mills to the jury in this
case, and hope that all interested
will give the same careful porusal.
CHARGE OF THE COURT:
ALFRED GROOM vs.. Town or WATERLOO.
The plaintiff sues the defendant, town, to
recover damages suffered by him in the loss
of his left eye in consequence of having been
struck in the face by the branches of thorn
bush while travelling in two horse wagon
on public road leading through the defend
ant, town, on Sunday, the j. th of April 1869
There is conflicting testimony, which it is
your province 10 weigh and reconcile if pos
sible; if not you will determine with whom
Il
evidence so far as may be necessary TO show
the application of the law to the facts.
The plaintiff testifles that in company with
his wife and child, he was riding in a two
horse wagon on the highway from Hurricane
Corners t. Cassville leading through the town
OF Waterloo; he was travelling toward Cass-
vile, on his road homeward. A short distance
before he reached the ford of Grant River
he was carrying an umbrella in one hand and
held the lines in the other. The umbrella
which he held over his wife was lower than
his own head while driving in walk, the
branches OF thorn bush that hung over the road
passed over the umbrella, struck him in the
face and inflicted scratch or wound in his
lett eye, that within'a few weeks, resulted in
It's total loss of sight Sometime in June,
1869, Mr.. Woodman, the overseer, cut the
tree down
The defendant introduced evidence, in or
der TO satisfy the jury that the thorn tree that
inflicted the injury, was some five feet from
the near margin of the travelled track; that
ia branches were too short and too high to
have interrupted travel that many persons
had travelled by that tree, hauled rails and
hay, have driven teams, ridden on horseback
walked on foot along the road under or by its
branches and either were not aware of the
existence of the tree at all or suffered no in
convenience from it. Witnesses have been
introduced who testify that the plaintiff adj
mitted to them that the tree that inflicted the
wound grew not far from the ssWa ldorf cabin -
some 80 or 40 rods from the tree near the
ford; and TO prove that the puncture or cut
across the eye would not have resulted in the
loss of sight but for the carelessness and i'm
prudence Of the plaintiff.
The evidence will not justify you in finding
Tor the plaintiff should you come 10 the con-
clusion that the plaintiff received his injury
on the old and abandoned track near the
"Waldorf cabin" 1t does not appear that
the old track is now a highway in the defend
ant, town.
Tie common law did not authorize an action
against any municipal corporation in conse-
quence of injury done to travellers through
defect of any highway within the limits OF
such corporation. Its officers were indictable
for negligence. BY statute, however, in this
State, if any damage shall happen to any per-
son, his team, carriage or other property by
reason of the insufiiciency or want of repair
OF any highway, the person sustaining such
damage have a right to recover the same of
the town wherein it happened (Chap. ~, II.
Stat. Sec 1907
This statute does not require that town
should keep the whole width of public road
cleared out and fit for travel. II only requires
that highways shall be cleared out sufficient
width for the travel to be accommodated and
that the passing of teams going in opposite
directions should be provided for at proper
intervals. The law does not require they
should be absolutely safe so as to relieve the
traveller of the duty of proper diligence; it
is enough that highways should be reasonably
safe having regard to the condition of the
country, the surface of the soil requiring
slight or very great labor and expense in fit
ing it for the purposes of travel, and the
capability of the town in dischargng its du-
ties to the public. The town or its officers
must be guilty of negligence in not keeping
its roads in repair, or there can be no recov-
cry. The want of repair and negligence
charged upon the town in this action, is, that
the town suffered the branches OF a thorn
tree, near the the travelled track, to extend over
the track so low that they would strike the
body or face of a person sitting IN his wagon
| or buggy, and passing by the tree, and that
the plaintiff so passing by such tree on the
| 10th of April, 1869, was struck in the eve by
| these branches, which in consequence was
| deprived of sight Overhanging branches
| firm and strong enough to do injury, and SC
| situated as TO strike person riding or walk
ing in highway constitute a defect within
the meaning of the statute. But the branches
must be Of such character and so situated
| that man Of ordinary prudence would APP
prehend danger from them. OF their exist
ence and character and position, you are to
Judge. The town authorities, not having
notice, the defendant will not be liable unless
the damage from these branches was so obvi-
Gus that ordinary diligence and care on the
part of these officers would have detected the
danger and removed it. If the plaintiffs ev-
idence satisfies you that the loss of his eye
without carelessness on his part is attributable
to defendants negligence in not discovering
and removing tree, the branches of which
endangered persons travelling on the high
way, with ordinary precaution, and That the
| plaintiff ~hiIst so travelling on the highway
received from these branches the injury for
| which he sues, he is entitled TO recover.
Although thore is no evidence to show that
any negligence on the part of the plaintiff
contributed TO the jury at the time il was re-
celved, yet if the loss of plaintiffs eve would
not have followed but for his own imprudence
| and exposure afterward, he can recover nc
damages for so much of the injury as was
caused by such imprudence. Should you fine
that the defendant is answerable for the loss
OF plaintiffs eye, caused by its negligence
the quantum of indemnity will be largely il
your discretion, considering all the fact,
which should affect your verdict-the magni.
tude of the Oss fhe capac,fy of Tho ton,