Hammacher v. Town of New Berlin

Winslow, J. The highway in question was a country road. Towns are not required to keep such roads in suitable condition for travel for their whole width, nor are they required to build sidewalks thereon. Such a requirement would involve a greater expense, both for the town and for adjoining landowners, than has been thought reasonable as yet. Possibly the time may come when it will be deemed proper to require sidewalks upon such highways, but that time is not yet. The town has performed its duty if it properly grades and prepares a part of the highway of reasonable width, and keeps the same in a suitable condition for the use of passengers either on foot or in a conveyance. Kelley v. Fond du Lac, 31 Wis. 179. It is true that, if it leaves an unguarded excavation in such close proximity to the traveled and juepai’ed track that passengers using such track are in danger of falling therein while exercising ordinary care, it fails in its duty. So, in the present case, if the plaintiff had been using the-traveled track, and stepped off from the end of the culvert, probably there would have been a question for the jury whether the lack of a rail or guard constituted negligence, and also whether the plaintiff was exercising due care in his traveling. But that was not this case. It is undisputed that the plaintiff was very familiar with the road'and with its condition at this point. lie was knowingly using a part of the highway which had not been prepared for public travel. In so doing he walked into the ditch. No railing or guard designed for the purpose of protecting persons traveling on the [253] prepared way from tbe danger of falling off tbe end of tbe-culvert would bave prevented tbe plaintiff from falling into-tbe ditcb. Upon tbe undisputed facts, therefore, be was not entitled to recover, and a verdict for tbe defendant should bave been directed. Failing in this, tbe court properly granted judgment for tbe defendant notwithstanding tbe verdict. Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800. By the Court. — Judgment affirmed.