Hawes v. Town of Fox Lake , 33 Wis. 438 ( 1873 )

Hixoh, O. J.

The judge was guarded and particular in his instructions respecting the insufficiency of the highway, and there was nothing in that part of the charge of which the town can justly complain. The jury were informed that the deficiency or want of guards must have been at the point where the plaintiff passed from the highway limits ; and that if the highway was properly guarded there, or if there was no reason in the absence of guards to apprehend danger there to those who might be passing along the highway, or from it to go round the excavation, the town would not be liable, even though the jury might think the road was unsafe by reason of want of guards farther to the east. The insufficient and dangerous condition of the road at and opposite the place where the excavation existed, with no barriers erected to prevent travelers frony driving or walking into it, was made very clear by the testi-monyand the instructions given were intended to limit the liability of the town to injuries happening'for want of barriers at that place, or so near to it as to mate the necessity of erecting them, or the dangers to be apprehended without them things plainly to be seen and known by the officers of the town whose duty it was to oversee and keep the highway in repair. So far the charge of the court was strictly correct, and furnished no ground of objection on the part of the town.

But upon the other branch of the case, which was, whether the plaintiff was using the highway, or proceeding along in furtherance of the lawful and reasonable exercise of her right as a traveler, at th'e time the injury was received, or whether her relation of a traveler upon the road had not before then ceased, the instructions to the jury were erroneous. Taking the statement of the plaintiff herself and those of her two witnesses, her son and daughter, who were with her at the time of the accident, to be true, it is clear that no cause of action was proved against the town. In order to render a town or city liable on account of an injury sustained on a highway, it must have been sustained by a traveler, and the defect of the -way, either alone or combined with some matter of pure accident for which the traveler was at no fault, must have been the sole cause of the injury. Houfe v. Fulton, 29 Wis., 296, 304, 305. The testimony of the plaintiff and of her own witnesses shows that she was not using-the highway, or that part of it shown to have been defective, at the time the injury was received. She was not at that time a traveler upon the road, but her relation as such had ceased. She had knowingly, voluntarily and pur- , posely left the traveled way to walk around the south side of the excavation by a route which she knew would lead her some rods from the limits of the highway before returning within them, and she received her injury after having so left the highway, and at a point entirely outside of its boundaries. And her departure from the highway was entirely without demand or exigency of any kind in the sense of holding the town responsible for damage or injury caused by any defector obstruction existing beyond tbe highway limits, and at tbe place where the plaintiff was passing or endeavoring to pass, instead of pursuing her way along the road itself, and in the path generally followed by travelers, and which was designed by the authorities of the town for that purpose. No necessity for such deviation is claimed or shown, and the contrary thereof was proved at the trial. The son and daughter of the plaintiff, walking with her at the same time and intending to go to the same place, chose to follow “ the wagon track,” and passed the excavation in safety. The wagon track, or passable ground within the highway and opposite the excavation, was from thirty-five to forty feet wide. The plaintiff déeided not to pursue the wagon'track with her son and daughter, but to go another way round through the open grounds lying south of the public road, and so informed her son at the time. Her reason for doing so was, as she herself testifies, that “ the wagon track was muddy and slippery, and the turf was pleasanter walking.” This was, under the circumstances, an unauthorized and improper act on the part of the plaintiff, if she desired to hold the town responsible for her safety as a traveler on the highway. It was an improper and unauthorized act which directly contributed to the injury with liability for which she now seeks to charge the town. It was, as argued by counsel for the town, a resolution which, being taken and carried into effect, put an end to her character and claim as a traveler on the highway; and thenceforth she deliberately assumed all the risk of the new undertaking. She voluntarily and without sufficient cause abandoned the roadway of the town, chose her own path outside of it, and in so doing relieved the town from responsibility for any accident which might befall her, or injury she might sustain in her wanderings over the adjacent lands and before her return to the highway.

The rule requiring the traveler to keep within the limits of the highway, and generally also within the traveled part; or so much of it as has been prepared for the use of passengers and vehicles, as well as some exceptions to the rule, or circumstances which will excuse or justify the traveler in disregarding it, are stated and explained in the case of Kelley v. Fond du Lac, 31 Wis., 179, and authorities there cited. It certainly cannot be a circumstance which will excuse the nonobservance of the rule, or justify the foot passenger, whether male or female, by a country road, the boundaries of which are marked, or known, to him or her, in leaving such road, as for an insufficiency, and passing through the adjoining fields or vacant lands at the risk of the town for his or her safety as a traveler, that the road happens to be muddy and slippery, and the passenger finds it pleasanter walking out of it than in it. And such is in reality all the excuse or justification offered in the present case, since it appears from the plaintiff’s own statement that this was her only motive for leaving the highway, and that the bad condition of the road beyond, or her real or supposed exposure to danger arising from the excavation projecting a part of the way into or across it, had no influence whatever upon her resolution or choice.

And the case of Wheeler v. Westport, 30 Wis., 392, discusses the same rule, but decides nothing in conflict with the views here expressed. The facts of that case were peculiar, and it was considered as if the plaintiff had been walking within the traveled track. He was so near to the track that the court said that he or any traveler would be justified in assuming that no obstruction existed at that place, and consequently might rightfully walk or drive the wheels of his carriage or wagon there, not seeing or knowing the danger at the time. But in that case care was taken to point out and distinguish it from a case like this. It was observed (page 413) in the opinion: “Had the plaintiff been walking at a greater distance, or several feet from the track, knowing that he was so, and come upon obstructions causing injury, a different question might have been presented. The question of negligence on his part might then have become one of law.” And so we think of the present case, that the question of negligence on the part of the plaintiff, or of her abandonment of the character and relation of a traveler, did "become one of law, and that the court erred in submitting it as a question of fact to the jury. The court should have non-suited the plaintiff on the motion of the town, and, failing in that, a verdict should have been directed in favor of the town and against the plaintiff.

By the Court. — Judgment reversed, and venire de novo awarded.