Bills v. Town of Kaukauna , 94 Wis. 310 ( 1896 )

Pinney, J.

1. Under any reasonable construction or effect that may be given to the evidence, the defendant town was guilty of negligence, which was the proximate cause of the injury, of which the plaintiff complains. It was held in Schuenke v. Pine River, 84 Wis. 669, in substance that, where a town discontinues or alters the course of a traveled highway, it is its duty to erect and maintain suitable signals or barriers at the point of its discontinuance or divergence, to warn travelers of the fact, and that they must not proceed on the old track, but must turn upon the new road. Cartright v. Belmont, 58 Wis. 373. It appears from the evidence that persons not familiar with the road in the nighttime would be liable to follow the old track, as it was well beaten and plain, and that the persons traveling on the road upon this occasion had no knowledge that travel had been discontinued on it south of the east and west road, or that any wire fénce or obstruction had been placed across it. It was the duty of the town to give such notice or warning as would serve to prevent the use of the discontinued road by night as well as by day, as travelers have a right to use the public highways by night as well as by day, using reasonable care and caution in doing so. In the absence of anything to the contrary, travelers have a right to assume that a highway that appears to be open and used for public travel has not been discontinued, or travel on it obstructed by any device or means, especially such as a barbed-wire fence, practically imperceptible in the nighttime, and especially dangerous to persons or horses coming into sudden contact with it. The notice or barrier to warn travelers, in the present instance, in the nighttime, was not only an utter failure, but exposed them to .great and positive danger of injury to person and property. As was said in Munson v. Derby, 37 Conn. 311: “ The road, as it was, therefore, was a trap, and it was manifestly the duty of the town to use all reasonable precautions to prevent strangers and the unwary from being caught in it, and neglect to use such precautions rendered the highway insufficient and defective.” The evidence of the negligence of the defendant town was therefore clear and decisive.

2. It is urged that the question of alleged contributory negligence of those in charge of and driving the horse should have been submitted to the jury. It is not negligence per se to travel in the nighttime, although greater care and caution may be required than in the daytime. Nor is riding or driving at a high rate of speed negligence per se. Brennan v. Friendship, 67 Wis. 223. Nor is it necessarily a want of ordinary care to drive at night through a violent storm. Milwaukee v. Davis, 6 Wis. 377-391; Hart v. Red Cedar, 63 Wis. 634. Certainly it cannot be said that driving at the rate of five or six miles an hour, even in the nighttime, without knowledge of any defect or obstruction in the highway, is negligence or evidence of negligence. The question of contributory negligence is generally for the jury, under all the facts and circumstances of the case, and the inferences that may be properly drawn from them; but where, as in this case, there is really no evidence of contributory negligence, and all the inferences that may fairly be drawn from the evidence point to but one conclusion, then the question of contributory negligence is for the court, and not for the jury.

There is no other question in the case requiring discussion. The direction of a verdict for the plaintiff was correct.

By the Court.— The judgment of the circuit court is affirmed.