Griffin and wife vs. The Town of Willow.

dard, id., 503; Sup'rs Iowa Co. v. Vivian, 31 id., 217; Gerber v. Ackley, 32 id., 233; S. C., 37 id., 43; Cairns v. O'Bleness, 40 id., 469; Sup'rs Washington Co. v. Semler, 41 id., 374); and we see no ground for a distinction between those cases and this. It is very true, this is an obligation to pay money upon the happening of an event; but the money only becomes payable when such event has happened. It is not an unconditional promise to pay any sum. The condition is, "if the said Harrison Bell shall well and truly account for and pay over to the person entitled thereto all the net proceeds of such [sale], and honestly and fairly demean himself in the premises, then this obligation to be void; otherwise to be and remain in full force and effect." Now it does not appear from the complaint that the guardian ever made sale of any lands under the license; or ever became liable to account for any money; or failed to pay over any money which came to his hands belonging to the plaintiff; or that he has in any other respect violated the condition of the bond. Nothing is stated showing that the penalty has become due and payable. For these reasons we think the complaint is bad, and that the demurrer should have been sustained.

By the Court. The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.

GRIFFIN and wife vs. THE TOWN OF WILLOW.

HIGHWAYS: EVIDENCE: NEGLIGENCE. (1) Opinions of witnesses as to sufficiency of highway. (2) "Slight negligence."

1. In an action for injuries from a defective highway, witnesses cannot testify to their opinions as to the sufficiency of the highway.

2. It is the settled law of this state, that "slight negligence" is not a slight

Griffin and wife vs. The Town of Willow.

want of ordinary care, but merely a want of extraordinary care; and such negligence on plaintiff's part will not prevent a recovery for injuries caused by a defective highway.

APPEAL from the Circuit Court for Richland County. Action by husband and wife for injuries to their persons, alleged to have been caused by a defective highway. The evidence of the plaintiffs tended to show that at the place where the accident occurred, a ditch and water-break ran diagonally across the road, and that, upon the plaintiff husband driving his wagon into this ditch, the axle-tree was broken, the wife was thrown from the wagon, the horses ran away, and both plaintiffs sustained personal injuries. Witnesses for the defendant were permitted, against objection, to answer the following questions: "Was it necessary that there should be a bar there [referring to the water-break]? What kind of a road is it there? Is it possible to keep the road in a reasonably safe condition without a water-table [water-break] there? Was it such, taking into consideration the country and everything up there, as to be dangerous, taking proper care? At the time you saw it [four or five days after the accident], was there anything in the road which rendered it unsafe for a man to drive up or down the hill, using ordinary care?"

The court refused to instruct the jury, as requested by the plaintiffs, that slight negligence on their part would not defeat a recovery, but modified the proposition by adding: "but it must be so slight as not to contribute to the injury in any degree." In the general charge, the court said: "If one knows of a defect in a highway, and can avoid, by the exercise of reasonable and ordinary care and prudence, any injury in passing over it, it is his duty to do so. If he negligently and recklessly, under these circumstances, bring upon himself needless injury, the town is not responsible for it. * the jury find that the highway was not reasonably safe at the point in question, still, if Daniel Griffin (who was driving the team) knew of the existence of the ditch, and did not use a

*

If

Griffin and wife vs. The Town of Willow.

reasonable degree of care in driving over it, as ordinarily careful and prudent persons would do, in view of the circumstances then existing, and the accident resulted from such want of care, the plaintiffs cannot recover."

The defendant had a verdict; a new trial was denied; and plaintiffs appealed from a judgment on the verdict.

The cause was submitted for the appellant on the brief of J. W. Lusk. To the point that the court erred in permitting witnesses to give their opinions as to the safety of the road, the necessity for a water-break, etc., he cited Kelley v. Fond du Lac, 31 Wis., 185. To the point that it was error to refuse the instruction asked by the plaintiff, he cited Dreher v. Fitchburg, 22 Wis., 675; Ward v. M. & St. P. Railway Co., 29 id., 151; Houfe v. Fulton, id., 302; Hammond v. Mukwa, 40 id., 35.

For the respondent, a brief was filed by O. F. Black as attorney, and Wm. E. Carter, of counsel, and the cause was argued orally by Mr. Carter. They examined the evidence at length to show that the verdict could not have been different if the court had excluded the opinion of the witnesses, and contended that for that reason the judgment should not be reversed for the error. Green v. Gilbert, 21 Wis., 395; Kellogg v. Railway Co., 26 id., 223; Ketchum v. Zeilsdorff, id., 514; 29 id., 221; 17 id., 672; 15 id., 145. They also contended that, taking the whole charge together, the court must have been understood as saying that a slight want of ordinary care would defeat a recovery.

RYAN, C. J. The mere opinion of the respondent's witnesses upon the safety of the highway was of course inadmissible. Kelley v. Fond du Lac, 31 Wis., 179. It must have been admitted by inadvertence. The learned counsel for the respondent is too good a lawyer to deny the error. He took the position, however, that the admission of the opinion of the witnesses is immaterial, because the great weight of direct

Griffin and wife vs. The Town of Willow.

evidence upon the condition of the highway must have led the jury to the same opinion. This court cannot say so. It was for the jury to determine the weight to be given to the testimony of the several witnesses; and there certainly was evidence upon the sufficiency of the highway to support a verdict either way. In such cases a jury may well rely upon. the judgment of persons of intelligence and standing. And it is dangerous in practice, as it is wrong in principle, to admit witnesses to testify to the very conclusions of fact which the jury is impaneled to find.

The learned judge of the court below refused, upon request of the appellants, to instruct the jury that slight negligence on the part of the plaintiffs would not defeat their right to recover. The proposition is undoubtedly correct: the well settled law of this court. Slight negligence is not slight want of ordinary care contributing to the injury, which would defeat an action for negligence. "Slight negligence is defined to be only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use." And such want of extraordinary care, on the part of the person injured, will not defeat an action for negligence. Dreher v. Fitchburg, 22 Wis., 675; Ward v. Railway Co., 29 id., 144; Hammond v. Mukwa, 40 id., 35. In ordinary circumstances, persons traveling upon public highways are held to the exercise of ordinary care only.

.

The learned counsel for the respondent agrees to this; but claims that a fair construction of the general charge sufficiently gives the rule to the jury, to render immaterial the refusal of the learned judge to give the specific instruction asked. As the judgment must be reversed upon the other point, it is unnecessary to examine the charge to see whether it sustains this view. But because the learned judge refused to give a direct and positive statement of the rule, as asked, it has been thought proper, to avoid all mistake about it, to reiterate it here.

Prideaux and wife vs. The City of Mineral Point.

By the Court.-The judgment is reversed, and the cause remanded to the court below for a new trial.

PRIDEAUX and wife vs. THE CITY OF MINERAL POINT.

HIGHWAYS: LIABILITY OF CITY: EVIDENCE. (1-4) Certain facts held not to excuse dangerous condition of a street. (5) Certain declarations not part of the res gestæ.

CONTRIBUTORY NEGLIGENCE: AGENCY. (6) Negligence of driver of vehicle. (7-9) Degree and proof of contributory negligence.

1. In an action for injuries from a defective highway, proof in behalf of the defendant city that its authorities, upon actual view, were satisfied with the condition of the highway, is inadmissible.

2. Sec. 5, ch. 237 of 1873 (the charter of the defendant city) does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street.

3. There being a depression in one of the traveled streets of a city, the authorities raised one-half in width of the street over the depression, by embankinent some six feet high in the middle and gradually lessening towards each end; and the side of the embankment, next to that half of the street which was left in its natural state, was precipitous and without railing or barrier. Held, that the street was unsafe, as a matter of law, even though each half was safe by itself.

4. Proof in such a case that the defendant municipality has expended all the means at its disposal in repairing its streets, will not excuse it, every municipality being bound, at its peril, to keep its highways in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways.

5. The injuries complained of having resulted from the overturning of a livery carriage, in which plaintiffs were riding, the declarations of the driver to the owner of the carriage and team, after his return to the stable without the injured person, were not admissible in chief as part of the res gesta, though admissible, upon proper foundation, to contradict the driver.

6. The driver of a private conveyance is the agent of the person in such conveyance, so that his negligence, contributing to the injury complained of by such person as caused by a defective highway, will defeat the action. Houfe v. Fulton, 29 Wis., 296, as to this point, approved.

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