#### Marcus, Appellant, vs. Town of Medford, Respondent.

*May 5*

June *1, 1915.*

*Highways: Duty of town: Injury to pedestrian on side path: Absence of railing at embankment: Sidewalks: Evidence: Harmless error.*

1. Towns are not required to keep country roads in suitable condition for travel for tbeir whole width, nor are they required to build sidewalks thereon.

2. A cut having been made through a hill and the traveled track of the highway being through such cut, one who, while walking at night on a footpath which went over the hill within the limits of the highway, was injured by falling down the embankment to the road below, cannot recover from the town for such injury.

3. The traveled track through the cut being reasonably safe, sufficient, and suitable for travelers op foot or by vehicle, and the footpath being obviously outside of the traveled track, the town was not bound to maintain a guard or railing along the top of the embankment to protect persons using such path.

4. The exclusion of evidence as to the action of the town board upon a petition for the laying of a sidewalk along said highway was not prejudicial error, it appearing that the town did not lay the sidewalk and that it did not extend to the place in question.

Appeal from a judgment of tbe circuit court for Taylor county: G-. N. Risjobd, Circuit Judge.

*Affirmed.*

Tbis is an action to recover damages for personal injuries sustained by tbe plaintiff while traveling on a public highway in tbe town of *Medford.*

On tbe evening of August 15,1911, tbe plaintiff stepped or fell off from an embankment made by a cut through a bill on one of defendant’s highways. Tbe highway runs east and west. On the southerly side of the highway and near the place where plaintiff was injured is a dwelling house occupied by a Mrs. Grlassow. This house is situated on the elevation through which the cut has been made. A road fence extends along the northerly line of the Grlassow place and the southerly boundary of the highway. The distance from this fence to the edge of the cut varies from ten feet six inches to eleven feet six inches. There was a path in the center of this *156space between tbe road fence and tbe edge of tbe cnt wbicb was somewhat used by pedestrians. There was on this road a sidewalk extending from tbe eastern limits of tbe city of Medford to a point a short distance from tbe Glassow property. Another sidewalk, beginning at a point some distance east of tbe Glassow property, extended out to tbe cemetery. The evidence tends to show that younger people in traveling this highway used tbe path outside of tbe traveled track of tbe road in front of tbe Glassow residence instead of tbe road through tbe cut, but that pedestrians generally used tbe traveled track until they reached tbe sidewalk on tbe east of tbe Glassow premises. In wet weather travelers at times used this side path in front of tbe Glassow dwelling because of the muddy condition of tbe traveled track. It appears that there were no barriers or guards along tbe bank of tbe excavation to warn and to prevent persons from falling into tbe cut.

On tbe night in question tbe plaintiff bad been at tbe Glas-sow home and, hurriedly returning therefrom after dark, she miscalculated tbe distance from tbe Glassow road fence to tbe path and fell over tbe embankment onto tbe road below. Tbe plaintiff sustained injuries and was confined to tbe bouse for a time.

She alleges in her complaint that tbe town was negligent in failing to maintain a guard or barrier along this embankment at tbe cut to make the highway reasonably safe for travel and that it bad negligently permitted tbe traveled portions thereof to be in an insufficient and defective condition and out of repair. It appears that tbe plaintiff was familiar with tbe conditions of this path. Tbe traveled track of tbe highway was in good condition for public travel.

A petition to tbe town board for a sidewalk was offered in evidence, but tbe town records disclosed nothing further regarding tbe action of tbe board In respect thereto. Plaintiff offered to prove that tbe petition bad been acted upon by tbe town board and that tbe sidewalk bad been built. There was *157no evidence to show that tbe town undertook to maintain and keep tbe same in repair. Tbe court did not receive the offered evidence.

Defendant moved for a direction of a verdict on tbe grounds that tbe place where tbe plaintiff sustained her injuries was outside of tbe traveled portion of tbe highway, which it is alleged was in a reasonably safe condition for public travel, and that tbe plaintiff’s want of ordinary care proximately caused her injuries. Tbe court granted this motion and directed tbe jury to return a verdict in favor of tbe defendant town. ■Judgment was entered dismissing tbe action and allowing tbe ■defendant its costs and disbursements. Erom such judgment this appeal is taken.

Eor tbe appellant there was a brief by *J ohn B.*Hagarty, attorney, and *J ohn K.*Parish, of counsel, and oral argument by *Mr. Parish.*

Eor tbe respondent there was a brief by *W. H. Stafford*and *T. J.*Gonnor, attorneys, and *Herman*Leicht, of counsel, .and oral argument by *Mr. Gonnor.*

Siebecker, J.

It is contended that tbe court erred in rejecting tbe evidence offered by tbe plaintiff respecting tbe action of tbe town board on tbe petition for laying a sidewalk •on this highway from tbe limits of tbe city of Medford to a point near tbe westerly end of tbe cut in tbe road as heretofore described. This ruling was not prejudicial to tbe plaintiff. It appears that tbe town did not lay this sidewalk. It also appears that tbe sidewalk did not extend to tbe Grlassow land, but terminated to tbe west of tbe cut and the Grlassow place. This renders tbe evidence as to tbe action of tbe board concerning this petition of slight materiality, if any, on tbe issues raised in tbe case.

> “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. . . . Tbe town has performed its *158duty 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.” *Hammacher v. New*Berlin, 124 Wis. 249, 102 N. W. 489.

The plaintiff’s contention that the part of this road between the Grlassow road fence on the southerly margin thereof and the edge of the embankment of the cut, which was used by some pedestrians in traveling this road, constituted a part of the traveled track of this road, is not sustained in the light *of*the facts of the case. It is shown that the town provided a reasonably safe and properly graded traveled track through-the cut and that it was reasonably sufficient and suitable for-travelers on foot or by vehicle. It also appears that the actual travel on the road along the path over the embankment,, before the Glassow premises, by foot pedestrians was obviously outside of the traveled track and that this was manifest to travelers using this road. Under such conditions and circumstances the town was not required to place a guard or-railing on the embankment along the cut in the road to protect persons using the side path. It is clear that plaintiff has-no cause of action against the town. The photographs were-properly admitted in evidence. The court committed no-error in awarding the judgment appealed from.

*By the Court.*— The judgment appealed from is affirmed..