Wiltse v. Town on Tilden

{1-8) Recovery for death of person: Pleading: Evidence: Damages. (J) Defective highway: Overflow: Duty to give warning. (5) Evidence: Opinions. 1. In an action to recover for the death of a girl, a complaint alleging that the plaintiff, who sues as administratrix, was the mother of the intestate and dependent upon her in- a large degree for support and had suffered pecuniary injury by reason of her death to an amount stated, is held sufficiently to show that the plaintiff was a person entitled to the money when recovered. 2. Evidence, in such case, that the plaintiff had been divorced from her husband and that the custody of the girl had been awarded to her, and evidence of her xiecuniary necessities and of the education and capacity of the girl for earning money, was admissible. 3. A verdict, awarding $2,000 to a mother for the death of her daughter sixteen years old, upon whom she was largely dependent for support and who had some capacity for earning money, is held not excessive. 4. In an action against a town for the death of a person resulting from defects in a highway caused by an overflow of a neighboring creek,' a charge to the jury that if the dangerous condition of the road at the time of the accident might reasonably have been anticipated by the town authorities, in view of the previous known defects therein and the nature of the creek, it was then duty to have closed up the road until it was repaired, or to have provided means for warning travelers of the danger, is held not erroneous. 5. The opinions of witnesses upon questions which the jury are as competent to determine as they, are inadmissible.

APPEAL from tbe Circuit Court for Cffwppewa County. Tbe following statement of tbe case was prepared by Mr. Justice Oassoday: This is an action for damage by reason of tbe death of tbe plaintiff’s intestate, caused by a defective highway. It appears from tbe record that tbe Bloomer road runs northerly from Chippewa Palls; that upon, that highway, and about six miles north, from Chippewa Rails, the Cook’s Valley road, so called, branches off and runs in a northwesterly direction to a place called “Cook’s Valley;” that about eighty rods from the Bloomer road the Cook’s Valley road crosses what -is known as “ Duncan Creek,” which at that place comes down on the northeasterly side of that highway, and then crosses to the southerly side of the same, and runs for some distance along that side of it, and then turns and runs nearly south; that in a high stage of water .that creek spreads out over considerable portions of the Cook’s Valley road; that between Chippewa Ralls and Cook’s Valley there was a stage line which carried the United States mail; that one Whittemore had driven that stage during the summer of 1887; that he was again employed in April, 1888, and started on his first trip from Chippewa Ralls about twenty minutes after 7 o’clock on the morning of April 28, 1888, with a single seated buggy, taking with him, as his only passenger, Kate Wiltse, the intestate, a girl between sixteen and seventeen years of age; that it was a stormy morning, raining most of the time. 'Whittemore testified to the effect that he was, at the time, upwards of twenty years of age; that he had earned his own living since he was twelve, working about the woods, on the river, and driving livery, stage, etc.; that he reached Duncan creek about 9 o’clock of the morning mentioned; that as he drove down the hill towards the creek he looked across, and could see the bridge all right, about two feet above the water in the creek; that the land between him and the bridge was considerable lower than the bridge; that the water was running over the road in such low portions; that from the looks he thought it was all right; that he drove right along a little ways, and then went out and unchecked the horse, so he could drink; that he started along and drove the horse into the water, where at first it was a little above bis abides, and then went along until tbe water got pretty near up to bis knees; that there then seemed to be a kind of bill, and tbe horse stopped, and then started, when tbe water was about to bis ankles again and dirty; that tbe girl then said, “ I guess we are all right now; ” that be replied that be guessed so; that “ just then tbe horse went right off in on bis bead; ” that tbe “ bole was right in tbe center of tbe traveled track,” and some two or three rods from where be first drove into tbe water; that tbe bridge was some four to eight rods beyond tbe bill;' that “ we went right off into tbe bole on tbe plunge, and swung right around to tbe left, and tipped tbe buggy over; ” that be caught tbe girl with bis left band, and they both fell out of tbe buggy at tbe same time; that be could not tell tbe depth of tbe bole, but that it was something like six or eight feet; that be swam with tbe girl a little piece, and then went under tbe water; that when be came up they were about six feet out from tbe shore; that be caught the brush with bis right band, and then turned around and went under tbe water, and came up eight or ten feet below, and that was tbe last be saw tbe girl before she was dead; that half an hour after tbe accident tbe water in tbe creek was two or three feet higher than when be first drove into it; 'that after going to Chippewa Falls and returning, and between 1 and 2 o’clock of tbe same day, tbe water was five or six feet deeper than at tbe time of tbe accident. Tbe plaintiff was appointed administratrix of tbe estate of said deceased, and commenced this action to recover damages, by reason of tbe girl’s death. Tbe complaint is in tbe usual form in such cases. Tbe answer denies tbe alleged defect in tbe highway, and alleges contributory negligence. At tbe close of tbe trial tbe jury returned a general verdict in favor of tbe plaintiff, and assessed tbe damages at $2,000. They also, in answer to a special ques- tion submitted, found, in effect, that neither the deceased nor the driver with whom she was voluntarily riding was guilty of any want of ordinary care at the time of the accident, which contributed to the happening of the accident. From the judgment entered upon such verdict the defendant appeals. contended, inter alia, that a complaint under sec. 4256, E. S., is not sufficient unless it specifies the particular relatives who are legally entitled to the damages. So far as the complaint in this case shows the deceased may have left a husband and descendants, or a father as well as a mother. Burlington dé M. B. Go. v. Crookett, 17 Neb. 570; Sctffordv. Brew, 3 Duer, 627; Begem v. O., M. dt St. P. B. Go. 51 "Wis. 599. Evidence of the mother’s pecuniary circumstances should not have been admitted. Indianapolis, P. da C. B. Co. v. Pitzer, 109 Ind. 179; Mayhew v. Burns, 103 id. 328; Booney v. Milwaukee Ohair Co. 65 Wis. 397.