Branegan v. Town of Verona

Owen, J. The defendant town urges reversal of the judgment because, as claimed, the evidence shows that the highway iyas reasonably safe for public travel; that the deceased wa$ guilty of contributory negligence; that if the [140] highway was defective such defect was not the proximate cause of the accident; and because of refusal to charge the jury as requested. It is undisputed that there was a sharp decline on the west side of the turnpike, which decline extended downward a distance of three or three and a half feet; that one of the wheel tracks came within three inches of the edge of this decline, and that no railing or barrier existed thereat to protect vehicles from going over the ban¿. The accident occurred because the automobile driven by deceased went over the bank and was overturned. It is claimed by plaintiffs that the absence of a railing or barrier at the point in question rendered the highway defective and unsafe for public travel. In Miner v. Rolling, 167 Wis. 213, 167 N. W. 242, it was urged that the absence of a railing or barrier under similar circumstances rendered the highway defective as a matter of law. That contention was rejected, but it was held to be a jury question. So we must hold here. The dangers attending a very slight deviation from the traveled track on the west side of this turnpike are quite apparent, and the jury were entirely justified in finding that the highway was defective and unsafe for public travel as a result of the absence of a barrier or railing along the west side of the turnpike. Palpable cases may arise where the court can say that the absence of a barrier or railing along the edge of a highway does or does not constitute a defect as a matter of law. But, as a general rule, that is a jury question. As was pointed out in Wheeler v. Westport, 30 Wis. 392, almost innumerable circumstances, such as the topography of the locality, the development of the community, the standard of road construction attained therein, the amount and character of traffic, .etc., are to be taken into consideration in determining whether a given condition renders a highway defective. Such is still the law. That which will render one highway defective will not condemn another. Where the [141] building of a primitive dirt road strains the resources of a town, defects will be tolerated that will render another maintaining a concrete highway liable for damages. If in the development of the state accepted standards of road building require barriers at places such as we are considering, the legislature may so declare. Until then it must remain, as a general proposition, a question to be decided by a jury, and towns leave such questionable places unguarded at their peril. That portion of the verdict which finds that the highway was not reasonably safe for public travel cannot be disturbed. It is urged that the deceased was guilty of contributory negligence because, it is alleged, the duty imposed upon towns requires them to keep only the traveled track in repair, and that his deviation from the traveled track was primarily responsible for the accident. In answer to this we may. say, first, that the undisputed evidence does not show that he proceeded outside the traveled track, or at least outside the beaten track. The testimony of the daughter is that the right-hand wheels were on the edge of the grass. But, however that may be, it is certain that the right-hand wheels of the automobile were but a few inches east of the black dirt. A witness for the defendant, referred to in the statement of facts, said: “It was right off, just a few inches east ©f the black dirt; right along there in the dirt; there was a wheel track there, and it was running in that.” Defendant's counsel refers us to numerous cases in this state in which it is held that a traveler on a highway may not deviate from the traveled track and hold the town liable for injuries sustained at a point not within the traveled track of the highway. There is no case, however, cited to our attentian which holds that a traveler on a highway turns from the beaten track a distance of a few inches at his own peril. The cases referred to all involve a complete deviation from the traveled track, the taking of a route entirely separate and apart from the one prepared by the town for [142] the purposes of travel. They have no application here. It would be laying down a pretty strict, if not an unreasonably harsh, rule to say that a traveler on a highway may not under any circumstances turn the outside wheel of his vehicle into the grass bordering the beaten track without being guilty of negligence as a matter of law. We think that what the deceased did was quite natural under the circumstances. The road ahead of him presented a muddy appearance, although as a matter of fact it was hard and dry. That it was rough and full of ruts is undisputed. He held his machine well over to the right in order to. avoid what appeared to him to be a bad' spot. If in doing so the wheels on one side of the machine were brought slightly into the grass, it was not such behavior as can be pronounced negligence as a matter of law. Kadolph v. Herman, 166 Wis. 577, 166 N. W. 433. It is said that the town board could not foresee that an accident such as this might occur by reason of the absence of a railing or barrier. That is not the test. It is not necessary that the town officers should foresee that an accident happening just as this happened was likely to occur. It is sufficient if they should have foreseen that an accident might occur; that is, that a vehicle running along the highway might be precipitated over the west bank. Such an occurrence might be brought-about by a variety of circumstances, some of which can be reasonably foreseen while others caff-not. The fact that the unprotected declivity on the west side of the turnpike endangered the safety of travelers is sufficient to satisfy the requirement of reasonable anticipation. Appellant also complains because the following requested instruction was not given: “Towns are not required to keep a country road in suitable condition for travel for its whole width. 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.” [143] “The defendant town of Verona was not required to keep all the width of the highway in a suitable condition for public travel at the point of the accident in question. The defendant was in duty bound to keep so much of the width of the highway in such condition that it-was reasonably safe for public travel over it with an automobile driven by persons while using ordinary care,” The substance of the request was communicated to the jury in that portion of the charge quoted, which we regard as a substantially correct statement of the law. Certainly the refusal of the court to grant the request to submit the charge requested does not constitute reversible error, in view of the charge given. Appellant also complains because respondents’ attorney was permitted to cross-examine his own witness. This was a matter peculiarly within the discretion of the trial court and cannot work a reversal of the judgment. We see no error in the record. By the Court. — Judgment affirmed.