Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1871-01-10
Garrett Foshay,
vs.. ; Dane Cjrcuit a.
4own of Glen Haven.

applicable 10 this case
|. You will determine the following ques-
tons
FIRST, Whether the log in the highway
IN question was an object calculated fr1m its
size, appearance and position to Tighten hors-
es OF ordinary gentleness lawfully travelling on
Inc highway and if you so find it, the Court
charges that twas an obstruction which ought
10 nave been removed by the town authorities
and its presence there was defect in the high
way wlIhln the meaning Of the statute.
SECOND, You Will determine whether the
PLAINTIFFS horses were frightened at the loo
and thereby the injury was caused.
THIRD, Whether in respect to his conduct
at the time of passing the obstruction and in
the care OF his team, and in the use of the
team, harness and wagon he used, the plain
tiff exercised ordinary care
1t these points are all determined in the
plaintIfzs favor, he IS entities to your verdict.
III. The law recognizes three degrees Of
Care:
/. Great Care and Caution such as IS shown
by persons OF the greatest prudence and cir
cumspecton.
2. Slight Care, which is snch as is shown
by persons the most needless in The conduct of
their own affairs.
g. Ordinary Care, which is that degree OF
care which men of ordinary prudence, the
~ cat mass VI Hldnkllus exercise in the con-
duci OF their affairs. 1t is only this last de-
gree OF care which the plaintiff was required
by law 10 exercise, and if you find that he was
guilty OF no want of il, but conducted himself
IN the various respects connected with this
transaction as person OF ordinary prudence
would have done, the want of any greater de.
gree OF care will not defeat his recovery.
III. If the plaintiff exercised ordinary care
ana prudence IN using the wagon, the harness
and the horses which he used in this case and
In no respect contributed 10 the injury bv The
want OF ordinary care, and the accident ham
pened IN consequence Of his horses being
frightened al The log in the highway and YOU
md that TO have been defect under the ia-
structlons give you, it does no; exonerate the
town mat some accident, such as the breaking
or pulling out OF an arrowhead on the single-
Tree or the accidental loosing of tug without
his fault, contributed TO the disaster.
1he following instructions were asked for
by defendants counsel, which were given by
the Court
The case is pot 10 be decided on conlectural
grounds, and the Town authorities were
bound to remove from the limits Of the road
only such objects as it would be obvious to a
person OF ordinary intelligence, care and iudr
ment, were naturally calculated to frighten
used and managed.
AS to the fact whether the log in question.
situated as It was, was an object naturally cal
culated TO irIghten horses of ordinary gentle
ness, the burden of proof is on the plaintiff,
and he must establish the issue on his part by
preponderance of all the testimony.
II you ind that the log in question was not
such an object as was naturally calculated TO
lrighten horses OF ordinary gentleness then YOU
must find for the defendant.
Although you may be satisfied that the LOG
was the cause Of the fright of plaintiffs horses,
you are not at liberty to find a verdict for the
piaIntlif, II 1t appears from the evid ence that
the log was not an object NATURALLY calcu-
lated to brighten horses Of ORDINARY gentle
ness or It 1t appears that the skittish or vi
cious habits OF the plaintiffs horses or either of
them, II they were such as an ordinarily prudent
person could not drive them, materially con-
tributed to produce the result, or if il is shown
that the horses were not harnessed and attach
ca 70 The buggy in an ordinarily safe and pru-
dent manner, and such want Of care and pru-
dence materially contributed to produce the
injuries received By the plaintiff, then he can
not recover in this action
In determining the question whether the loo !
IN controversy was an object naturally calcu- |
lated TO brighten horses of ordinary gentleness,
you must entirely disregard all opinions which
witnesses have expressed, as to whether it was
frlghttul object, and you must disregard all
testimony showing or tending to show that any
morse or horses other than the plaintiffs were
ever frightened by it. You are TO decide this
question upon the evidence of witnesses de-
scIl6lng the log, its peculiarities if it had any,
ana It's location with reference to the travelled
track, and determine from such evidence
whether it was an object naturally alculated
TO brighten horses Of ordinary gentleness. If
you believe from the evidence tn al the skittish-
ness or vicious habits of the plaintiffs horses
or either OF them, if they were such as a per-
son OF ordinary prudence ought not 10 drive, |
IN any way contributed to produce the acct
dent In question, then the plaintiff annot re-
cover.
1t you believe from the evidence that the
horses of the plaintiff were not attached to the
buggy in an ordinarily safe manner and such
fact, if such you find it to be, materially con.
tributed to produce the accident of which the
plaintiff complains, then he cannot recover.
An object within the limits of the highway, |
which might possibly or might not frighten a |
travellers horse does not render the highway |
insufficient, and if in such case his horse be-
came frightened at it and damage ensued the
Town would not be liable.
The Town IS liable only when the character
OF the object is such that it has a natural ten
dency to Brighten horses of ordinary gentle
ness.
In regard to declarations or admissions. I
when an admission IS deliberately made and |
precisely identified, the evidence it affords is
o oIG "a me most satisfactory nature"
4 Greenleaf Evidence 200)
It's incumbent on tie plaintiff to show. MT
only defects in the highway, hut that he was
Tree IRON ordinary negligence and used due
care and skill as to the adjustment Of his har
ness, as to length of tugs and secure attach
ment of the whipple trees.
Towns are not obliged to make smooth and
Tree from distractions the whole road from
one boundary to the other.
II the negligence of the plaintiff. as 10 the
proper adjustment of the harness and manner
OF attachment to the carriage, contributed TO
the accident, plaintiff is not entitled TO recoy-
Els unless me jury should find that the negli-
gence OF the plaintiff was in the omission of
minute precautions which man of the GREAT
est prudence sometimes omits to take.
In an action against town for an injury
occasi9ned by defect in highway, the ques-
ION whether there was neg ligence or want Of
ordinary care on the part Of the plaintiff is 70
be determined by the jury under all the cir
,umstances Of the case
1t is question of fact for the Jury, and not
IF law for the Court, whether the Town used
ordinary care in the construction OF the road
mi whether the road was reasonably safe.
The plaintiff must establish by competent
root that the highway in question was insult
lclent and in want OF repair.
The plaintiff must show that at the time of
he occurring Of the accident and damage, he
vas driving ordinarily safe aud gentle horses,
With ordinarily safe and strong harness, with
safe and strong carriage or vehicle,
o which said horses were attached in good I
oad-worthy manner, and that the plaintiff {
vas driving his said horses with ordinary care
md skill. If the plaintiff has not established
hese facts satisfactorily by proof, he is not
Untitled to recover in this action :
Towns arc required by law, TO provide suf- j
cient highways and TO keep the same in re-
air for safe and convenient travel, but in the i
ischarge Of this duty, they are not required
D keep the whole width of the highway. sixty
eet smooth and level for travel thereon, trav- !
led track for the safe AMI convenient travel r.
y the pubic, is all that is required on the part
+ any town. The question as to the sufficien-
Y of the highway from the house of Mr..
Way to the Ray School Honse IN the defend- Al
1T Town, in travelling over which the plain d.
fl met with the accident on the 18th or LII, 81