CASES

IN THE

SUPREME COURT

or

WISCONSIN.

SIMONDS V. BARABOO.

[93 WISCONSIN, 40.]

NEGLIGENCE-FORGETFULNESS.-One who knew of defect in a highway, but temporarily forgot it, is not necessarily guilty of contributory negligence, and, if injured through such defect and his forgetfulness of it, the question whether he was guilty of contributory negligence should be submitted to the jury.

NEGLIGENCE.-A TRAVELER ON A HIGHWAY HAS THE RIGHT TO PRESUME it is in a safe condition, though he knew of a defect therein a week before, if it was in a conspicuous place and of such a character that very little time and expense would safely repair it.

NEGLIGENCE-CUSTOM.-EVIDENCE of the customary way of loading and hauling wood is not admissible for the purpose of aiding a jury to determine whether negligence was contributory.

EVIDENCE OF THE CUSTOMARY WAY OF DOING THINGS is not admissible if it is a matter of common knowledge. Action to recover for personal injuries received by the plaintiff from being thrown from his wagon through a defect in the street. He had seen this defect about a week before, but forgot it on the occasion of his injury. A plank in a crosswalk had been broken, leaving a drop of eight inches. The plaintiff was sitting on a load of wood, and, on crossing the defective part of the street, the wagon dropped therein and a part of the wood fell off, starting the horses and causing them to run away and the plaintiff to be thrown from the wagon and injured.

R. D. Evans, for the appellant.

Bentley & Bentley and H. Grotophorst, for the respondent.

42 MARSHALL, J. The plaintiff testified that he knew, prior to the accident, of the existence of the defect; and, based on such evidence, a motion was made at the close of plaintiff's

case for a nonsuit. It is insisted here that the denial of such motion was error, citing Beach on Contributory Negligence, sec. 87; Bruker v. Covington, 69 Ind. 33; 35 Am. Rep. 202; Gilman v. Deerfield, 15 Gray, 577. Beach lays down the rule (Beach on Contributory Negligence, 1st ed., sec. 12), in effect, that where one knows the danger, but temporarily forgets it, and in consequence suffers an injury, his forgetfulness will not avail him as an excuse; that what he knows he must remember at his peril, and that a failure to remember constitutes contributory negli gence if it occasions injury. But this is not supported by reputable authorities anywhere, and has been expressly repudiated by this court: Wheeler v. Westport, 30 Wis. 392. No stronger case, probably, can be found to support the text in Beach on Contributory Negligence than Gilman v. Deerfield, 15 Gray, 577. There plaintiff was well acquainted with the defect; he had passed over it several times within a short period prior to the accident; the last time he observed its character particularly, and so fully appreciated the danger that he deemed it necessary to drive over the defect at a walk and with care. It was so situated as to be in plaintiff's view for several rods before he reached it. His horse was a quick, high-spirited animal, accustomed to start quickly. He approached the defect on a trot, going at the rate of five or six miles an hour, so carelessly that he could not afterward remember whether he was driving with a 43 slack or tight rein. He was a doctor, on the way to visit a patient, and his thoughts were on that business. He did not think of the defect in the road till it was too late to stop his horse. Held, under these facts, that failing to remember constituted contributory negligence as a matter of law. Yet in Wheeler v. Westport, 30 Wis. 392, this court held that the Massachusetts court in that case "carried the doctrine of forgetfulness of the existence of a defect or obstruction as conclusive evidence of contributory negligence to the very extreme of reason and sound policy"; and, as there shown, that court has not extended the rule, but has often since held that previous knowledge was not of itself conclusive evidence of contributory negli gence. In fact, the rule of Gilman v. Deerfield, 15 Gray, 577, has been so fenced in by subsequent decisions as to be practically overruled: Whittaker v. West Boylston, 97 Mass. 273; Smith v. Lowell, 6 Allen, 39; Blood v. Tyngsborough, 103 Mass. 509; Brigham v. Worcester Co., 147 Mass. 446. To the same effect are Weed v. Ballston Spa, 76 N. Y. 329; Bassett v. Fish, 75 N. Y. 303; Driscoll v. New York, 11 Hun, 101; Dorsey v. Phillips

etc. Const. Co., 42 Wis. 583; Cuthbert v. Appleton, 24 Wis. 383. In this case, the defect was not in view of the plaintiff till it was too late to stop his horses; he had seen it but once before; it was on a main thoroughfare in a city of considerable size, where one might reasonably presume such a defect would be promptly repaired. Certainly, in view of these facts, notwithstanding previous knowledge, the question of contributory negligence was for the jury.

It is said the court erred in failing to charge the jury on the subject of notice, but the fact of notice to the defendant was conclusively established by the evidence; therefore there was nothing to submit to the jury on that subject.

The charge of the court that the traveler on a highway has a right to presume it is in a safe condition was excepted to as erroneous, in view of plaintiff's knowledge of the condition 44 of the street; but, in view of the facts, the charge was proper: Weed v. Ballston Spa, 76 N. Y. 329. That such is ordinarily the rule is not questioned, and notwithstanding the fact that plaintiff had seen the defect about a week previous to the date of his injury, it being in a conspicuous place and of such a character that a very little time and expense were sufficient for its repair, he well might reasonably have assumed that the repairs had been made.

It is claimed that the court erred in instructing the jury on the subject of damages recoverable for future disability. The charge in that respect is subject to criticism, but no objection was taken; hence the error cannot be reviewed on this appeal.

In respect to the question of contributory negligence, the court, against defendant's objection, admitted evidence of the customary way of loading and hauling wood. The general rule, Jubject to many limitations and exceptions, is that evidence of custom bearing on the fact of negligence, when such fact is in issue, is admissible: Wharton on Negligence, sec. 46; Black on Proof and Pleading, sec. 36; Bailey on Master's Liability, 527, and cases cited.

There is considerable conflict of modern judicial authority on the subject, though the trend of decisions has been rather in favor of a liberal application of the general rule, yet preserving rigidly the exceptions thereto. Such general rule has been followed in this court: See Jochem v. Robinson, 72 Wis. 199; Nadau v. White River etc. Co., 76 Wis. 120; 20 Am. St. Rep. 29; where the evidence was held admissible. And the exceptions to and limitations of the rule have been recognized as well:

AM. ST. REP., VOL. LVII.-57

See Dorsey v. Phillips etc. Const. Co., 42 Wis. 583, where proof of custom was held immaterial, and Hinton v. Cream City Ry. Co., 65 Wis. 323, Mulcairns v. Janesville, 67 Wis. 24, and Colf v. Chicago etc. Ry. Co., 87 Wis. 273, where the evidence was held not admissible. At the foundation of the rule lies the idea that the act constituting the 45 subject of the custom is one in respect to which the manner of doing it is not a matter of common knowledge. If this were lost sight of, and evidence allowed to prove the customary way of doing anything, however common, a rule which, restricted within reasonable limits, promotes the due administration of justice, would be quite likely to have the very opposite effect.

It is the judgment of the court that the admission of evidence of the customary way of doing an act so common, so ordinary, and so usual as that of loading and hauling wood is within the exceptions to the general rule admitting such evidence, or, to state it more accurately, is a departure from the rule itself; that the evidence in that regard, freely admitted in this case by the trial court, may probably have influenced the jury to defendant's prejudice; and therefore that such admission constitutes error, for which the judgment must be reversed.

By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial.

NEGLIGENCE-FORGETFULNESS AS EVIDENCE OF QUES TION FOR JURY.-To forget a danger is not negligence, unless it shows a want of ordinary care, and that is a question for the jury: Giraudi v. Electric Imp. Co., 107 Cal. 120; 48 Am. St. Rep. 114, and note; Russell v. Monroe, 116 N. C. 720; 47 Am. St. Rep. 823, and note. MUNICIPAL DEFECTIVE STREETS RIGHTS OF PERSONS USING THEM.-A person walking upon a sidewalk has a right to expect and to act upon the assumption that the municipal authorities have properly discharged their duty by keeping the streets in good repair: Russell v. Monroe, 116 N. C. 720; 47 Am. St. Rep. 823, and note.

CORPORATIONS

EVIDENCE-CUSTOM-ADMISSIBILITY OF - WHEN MUST BE PROVEN.-A general usage in a particular business need never be alleged in pleading: State v. Morton, 27 Vt. 310; 65 Am. Dec. 201; Barlow v. Lambert, 28 Ala. 704; 65 Am. Dec. 374, and note. A usage, to be admissible, must be proved to be known to the parties, or to be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform: Baltimore Baseball Co. v. Pickett, 78 Md. 375; 44 Am. St. Rep. 304, and note. One charged with negligence will not be allowed to show that the act complained of was customary among those engaged in a similar oc cupation, or owing similar duties: Columbus etc. Coal etc. Co. v. Tucker, 48 Ohio St. 41; 29 Am. St. Rep. 528, and note.

MELMS V. PABST BREWING COMPANY.

[93 WISCONSIN, 153.]

EXECUTORS AND ADMINISTRATORS-SALES OF ARE VOIDABLE BUT NOT VOID.-Under a statute forbidding executors, administrators, and guardians from purchasing, directly or indirectly, the real property of the estates of their wards or decedents, and declaring such sales to be void, they are not absolutely void, but are voidable only at the instance of persons prejudiced thereby.

EXECUTOR'S SALES-CREDITORS AND HEIRS, WHEN MAY IMPEACH.-If the property of the estate of a decedent was purchased for the benefit of an executor or administrator, the sale may be avoided by creditors or heirs at law of the decedent who were prejudiced thereby.

EXECUTORS' SALES INNOCENT PURCHASERS. — Though an executor's sale was made for his benefit, and was therefore subject to be attacked and set aside by heirs or creditors prejudiced thereby, innocent purchasers who have acquired title under such sale without notice of the vice therein are protected.

EVIDENCE TO PROVE NOTICE.-The fact that purchasers of land which had been sold at an executor's sale are told by the executrix, who was also the widow of the decedent, that the purchaser would give the property back to her is not sufficient to charge them with notice that the purchase was made for her benefit.

NOTICE TO A PURCHASER, AFTER HE HAD COMPLETED HIS PURCHASE and received a conveyance of the property, of facts entitling other persons to avoid an executor's sale cannot defeat the title of such purchaser.

NOTICE TO AN ATTORNEY IS NOTICE TO HIS CLIENT in regard to any matter in which he is engaged, and, where the purchaser employs the same attorney as his vendor, he will be affected with notice of whatever such attorney acquired notice of in his capacity of attorney for either the vendor or purchaser in the transaction in which he was so employed.

NOTICE TO AN ATTORNEY-WHEN NOT NOTICE TO HIS CLIENT.-If an attorney, while conducting a transaction, acquires knowledge which it would be a breach of professional confidence for him to disclose, and he is subsequently employed by another person, the latter is not chargeable with the knowledge thus acquire and possessed by the attorney.

VENDOR AND PURCHASER EMPLOYING THE SAME ATTORNEY-WHEN NOT CHARGED WITH HIS KNOWLEDGE.— If a person, intending to purchase real property, employs the attorney of his vendor to act as his attorney, and such attorney has, in his previous employment by the vendor, obtained knowledge of facts on account of which the title of the latter may be impeached, it is not to be expected that he will disclose such knowledge to the purchaser, and the latter is not chargeable therewith.

NOTICE. A CLIENT IS NOT CHARGED with notice of a frand or wrong to which his attorney was a party while employed by another, because it is almost certain that the attorney will conceal such fraud or other wrong.

LACHES AND NEGLECT ARE DISCOUNTENANCED IN EQUITY, and a delay of less than the period of limitation fixed by statute may be regarded as laches, and prevent the interposition of equity.

LACHES WILL NOT BE IMPUTED to a person while under

disability.