#### Seaver, Respondent, vs. Town of Union, Appellant.

*January 30*—

February *18, 1902.*

*Highways: Negligence: Personal injuries: Proximate cause: Contributory negligence: Evidence.*

In an action for personal injuries sustained by reason of an alleged insufficiency of a highway it appeared, among other things, that the traveled part thereof, for a distance of about 700 feet, was worn and washed out to a depth of from ten to twenty inches, forming a cut too narrow for teams to pass without driving partly onto the embankments on either side. Such condition was well known to the officers of the defendant, and had existed for more than six months. Between a point 250 feet north and a point 200 feet south of the place of the accident there was nothing to obstruct the view of a person traveling south. The last safe turn-out for a person traveling south was 200 feet north of the place of the accident, and for a person traveling north 80 feet south thereof. Plaintiff, who was familiar with the highway and who had passed over it a short time before, in traveling south, drove his team, attached to a sled on which was a top-heavy load, into the cut past the last north turn-out, and there met another heavily loaded sled. In order to pass, each was compelled to drive up onto the bank, at that point thirteen inches high. After passing, plaintiff attempted to turn back into the road at a point where the bank was sixteen inches high. In doing so, his load overturned and he was injured. Plaintiff failed to observe the other team and paid no attention to its approach until they met. *Held,*that plaintiff was guilty of contributory negligence which was the proximate cause of the injury.

Appeal from a judgment of tbe circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.

*Reversed.*

Action to recover compensation for a personal injury alleged in tbe complaint to have been sustained under tbe following circumstances: On January 19, 1900, one of the public highways in the defendant town was insufficient at a point particularly described, in that, for a distance of about 100 feet south and about 600 feet north of such point, the traveled part thereof was worn down by travel and by the *323washing of surface water to a depth of from ten to twenty inches, forming a narrow channel or cut to which the travel was confined, the cut not being of sufficient width to allow teams to pass by each other without one or both turning out partly upon the embankments on either side of the roadbed. Such condition had existed for more than six months prior to the particular date mentioned and was well known to the officers of the town. On said day, while plaintiff was traveling south on said road, driving a span of horses drawing a sled upon which was loaded a saw frame and some pieces of machinery, he met a team of horses drawing a loaded pair of bobsleds, traveling north, which team was turned by its driver to its right in an endeavor to surrender, so far as practicable, one half of the traveled part of the way to plaintiff. There was not room enough for the teams to pass, which compelled plaintiff to turn his team so as to entirely clear the traveled part of the road with his sled. After the teams passed each other it was necessary, in order for plaintiff to continue on his journey, to turn back into the traveled track, and that while he was in the act of doing so, and was in the exercise of ordinary care, and wholly by reason of the insufficient condition of the highway as indicated, his sled and load thereon were overturned in such a manner as to fall upon his right arm and crush it, and otherwise inflict upon him severe bodily injuries to his damage in the sum of $5,000.

All the facts necessary to fix the liability of the town to compensate plaintiff for his injury, and to enable him to prosecute this action, were alleged. The answer put in issue the allegations as to the highway being insufficient, and as to the injury to plaintiff having been caused in the manner alleged by him, and set up contributory negligence as a defense.

The evidence established or tended to establish the following as facts: For a considerable distance both ways from *324the point where -plaintiff was injured, the traveled part of the highway was in a out, not much wider at tire bottom thereof than the space occupied by an ordinary wagon. A person coming from the north, after he reached a place 250 feet from where the accident occurred, could all the time thereafter, as he approached said point, see a team coming from the south at any place within a distance of 200 feet south of such point. The last safe turn-out place to the right, for a person coming from the north, as he approached where the accident happened, was about 200 feet from such point. There was a side road east of the main track, which connected with the latter at a point about 125 feet north of the place of the accident and eighty feet south thereof. Except where the turn-out places were located as stated,,for the whole distance referred to there was a bank on the east side of the main track, which sloped upward from the near wheel track to such a height that a person could not turn from the main track with a team, drawing a loaded sled, sufficient to allow another such rig to pass, without considerable danger of his load being turned over. Especially was that the case if the person was drawing a topffieavy load. If a person so circumstanced succeeded in turning out so as to- allow a team coming from the opposite direction to pass by him, he had to encounter again the danger of overturning his load in the act of trying to- regain the traveled track. Plaintiff was familiar with the situation, having traveled over the road many times. There was some new snow on the ground the day the accident happened, and the conditions were such that, in attempting to turn out of the track with a loaded sled to allow a person coming from the opposite direction to’ pass, the sled was liable to slide toward the track and obstruct it so as to prevent the teams from passing unless one of the sleds was drawn substantially clear from the track and upon the side or top of the bank. Plaintiff and an associate passed over the road going north a short time before *325lie was injured. He bad a team of horses hitched to a pair of bobsleds of the ordinary width, the bolsters extending out about as wide as the wheel tracks of a wagon. There was no box on the bolsters, but there was a platform made of planks, the top-of which was about twenty-one inches from the ground. The accident happened in the daytime. There was not enough snow to make good sleighing. The purpose of plaintiff in going north was to get a saw frame, which weighed about a ton. It was loaded on the platform of the sled just in front of the hind bolsters, the greatest length of the frame being crosswise. It extended beyond the sides of the platform each way about fourteen inches. The greater part of the weight of the machine was in the top, which was about four feet from the ground after the machine was loaded. It was secured in place on the platform by chains. After it was so secured plaintiff proceeded south and entered that part of the road which was in the cut and has been described. Before he reached the last place where he could turn out to his right as before stated, a team drawing a pair of bobsleds with a load thereon was in plain view, coming from the south. At this time neither driver observed the other or paid any attention to whether he was approaching another team. The driver of the team coming from the south did not see that any one was approaching from the north till he had passed beyond the place where the side road turned off to his right. Plaintiff did not observe that the team was approaching from the south till he had passed by where such side road turned off to his left. Each had ample opportunity to see the other before passing by where he could have turned into the east track. Erom the point where plaintiff observed the team coming from the south to where the teams met there was no place where either team, particularly plaintiff’s, could be safely turned out to allow another to pass by. As the teams came near together, each driver endeavored to turn his team to the right so as to surrender one half of the *326traveled track. Plaintiff wholly or nearly succeeded in bis effort in that regard, but as the teams attempted to pass eacb. other, the hind bob on the sled from the south swung around and obstructed the way, so he was unable to proceed without turning entirely out of the track, or the driver of the other team doing so, which could not be done, as before indicated, without considerable danger. Plaintiff concluded that it was easier for him to turn his team out upon the bank than for the person, coming from the south to do so, and he acted accordingly, succeeding in safely clearing the road and reaching the top of the bank. After going about fifty feet, and after the team from the south had passed by, he endeavored to regain the traveled track, selecting a place where it seemed to him possible to do so. As his team reached the traveled track they turned south therein, and as his sled passed over the brink of the bank it slid toward the edge of the track, and as it reached the track it dropped down into it, stopping suddenly in the side movement and causing his load to overturn. In some way, as the edge of the saw table came in contact with the ground, plaintiffs-arm was caught under it and crushed, and he was severely injured. There was considerable conflict in the evidence as-to the exact width of the cut at the bottom, and as to heights and -distances, and the manner in which plaintiff’s-arm came to> be caught under the edge of the saw table as the load was overturned.

At the close of the evidence appellant’s counsel moved the court to direct a verdict of no cause of action, which motion was denied, and due exception was taken to the ruling. The jury rendered the following verdict:

“1. Was the plaintiff injured by the upsetting of his sleigh, and load thereon, at the place in the highway described in the complaint? *A. By the Court.*Yes.

“2. What was the depth, expressed in inches, of the depression in the traveled track where plaintiff was injured? *A.*Sixteen inches.

*327' “3. What was tbe depth, expressed in inches, of the depression in the traveled track where plaintiff turned out of the same? *A.*Thirteen inches.

“4. Was there, upon the east bank of the highway, extending north from about the bend in the highway, as shown upon Exhibit C, a traveled track, reasonably safe for public travel ? A. No.

“5. If you answer question 4 ‘Yes,’ then what was the distance from the south end of said traveled track on the east side of the highway north, to the place where the same again first joined the so-called main traveled track? *A.*

“6. Could a person in the highway, 250 feet north of the place of the accident, and thence traveling south along the same to the place of the accident, at all times see a team at any place in said highway not more than 200 feet south of the place of the accident? *A. By the Court.*Yes.

“7. How far north of the place where plaintiff turned out on the traveled track was it' to the first place where the plaintiff might have, with reasonable safety, turned out on the west side of the highway, so as to have permitted- Mar-cey to pass with safety ? *A.*144 feet.

“8. How far north of the place where plaintiff turned out was it to the first place on the east side of the highway, where plaintiff might, with reasonable safety, have turned out and let Mareey pass? *A.*Seventy-five feet.

“9. Within a distance of seventy-five feet north of the place where plaintiff turned out of the traveled track, was there at a reasonably safe and suitable place where plaintiff and Mareey could have passed each other ? *A.*No.

“10. Could the plaintiff have turned upon, and passed over the east track, after he discovered that Mareey had passed over the south end of the east track? *A.*No.

“IT. Did the plaintiff try or attempt to hold with his hands, the sleigh and machine thereon, from tipping over, and while so employed was he injured ? *A.*No.

“12. Was the highway at the place in question in an unsafe and defective condition, which approximately caused the accident and injury to plaintiff? *A.*Yes.

“13. If you answer question 12 ‘Yes,’ then was the defendant town guilty of negligence in permitting such defective condition of the highway to exist at that time? *A.*Yes.

*328“14. Was tbe plaintiff guilty of a slight want of ordinary care, which approximately caused, or in any way contributed to, the injuries which plaintiff received? *A.*No.

“15. If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages? *A.*$3,000.”

After the coming in of the verdict counsel for appellant moved the court, among other things, to change the answer to the twelfth question from yes to no^ and the one to the fourteenth question from no to yes, and for judgment in appellant’s favor on the verdict as so> corrected. The motion was denied,, and due exception was taken to the ruling. Judgment was rendered in favor of the plaintiff upon the verdict and the defendant appealed.

Eor the appellant there was a brief by *B. L. & B. B. Browne,*attorneys, and *B. B. Qoggins,*of counsel, and oral argument by *Mr. Qoggins,*and *Mr. B. B. Browne.*

Eor the respondent there was a brief by *Hutchinson & HurTbut*and *Gate, Lamoreux & Parle,*and oral argument by *B. B. Parle.*

MaRshall, J.

Many questions, by proper exceptions to rulings of the court, were preserved for consideration, and were brought to our attention by proper assignments of error and fully discussed by counsel both in the oral and the printed arguments, which in our view of the case are immaterial; therefore, in the statement which we have compiled from the record we have omitted all parts of the history of the litigation not essential to an understanding of the single question upon which the appeal turns. ■ We shall not discuss the subject of whether the verdict is sustained by the evidence as to the highway being insufficient. It may be assumed, for the purposes of the. appeal, that the verdict in that respect is amply justified. Neither shall we discuss any of the numerous assignments of error as to rul*329ings on requests for special findings by the jury other than those embodied in the verdict, or on requests for special instructions not given, or any of the criticisms of the instructions which the court gave, or any of the exceptions found in the record to rulings on evidence. The result of our study of the case is that, without prejudice to the rights of appellant, all of the assignments of error presented and discussed may be left out of consideration, except those presenting the question of whether the evidence conclusively shows that the accident was caused wholly or partly by want of ordinary care on the part of respondent. If that must be resolved in favor of appellant, the motion made in its behalf, at the close of the evidence, for the direction of a verdict, should have been granted; and' the motion made after verdict, to change the answers to questions 12 and 14, and to render a judgment in appellant’s favor on the verdict as corrected, should have been granted.

After giving the verdict of the jury and the decision of the court due consideration, it seems that the vital question above suggested must be decided in favor of appellant. It is conceded that all the conditiitos which made the highway unsafe were open to the most casual observation and were fully known to respondent. The evidence shows such to have been the fact beyond reasonable controversy. The nature of respondent’s load was such that he must have known that he could not draw it out of the cut and up the slope, which rose some thirteen inches in a distance about the width of his sled, to the plain above, without great danger of the load being overturned. He must have known that if he met a team in the cut he might have to attempt that feat, or the person coming from the south would have to encounter a like danger, in order that the two might pass each other. He was traveling on one of the main highways of the town, one.upon which there was considerable travel to his knowledge, by teams with loaded sleds or wagons, and must have *330known that one was likely to be approaching from tbe south' at any time. Under such circumstances he passed by a I>lace where he had a good opportunity to turn to his right, and the last such place, without looking to see whether a team was coming from the south. He did not take any such observation till he had proceeded past the last place where he could have turned out safely to his left, and the team coming from the south had passed the last place where it could have safely turned out of the track either way. Dim-ing all this time the team coming from the south was in plain sight. Plaintiff did not see it because he did not pay any attention to the matter’, and was proceeding entirely unmindful of the danger without any circumstance to excuse his neglect. That such conduct is contributory fault, this court has often decided. *Collins v.*Janesville, 111 Wis. 348; *Devine v. Fond du*Lac, 113 Wis. 61. The first step iff the chain of circumstances leading up to the injury was plaintiff’s heedlessness in going into what, under the circumstances, was an obviously dangerous place. Being in there, he took the chances of trying to extricate himself by hauling his top-heavy load*up the slope at the side of the traveled track to the plain above. His attempt to accomplish that feat was an event set in motion, as it were, by his going heedlessly into' the place of danger. After he had reached the top of the bank and the team from the south had passed by, he was moved, by his course up to that time, to take the chances of trying to return to the traveled track by driving down the slope, which he did, where the descent was sixteen inches, and where, because of the steepness thereof, his sled was very liable to slide rapidly toward the track as soon as it passed sufficiently over the brink to throw the center of gravity of his load that way, and liable to come to a sudden stop as the left runner struck the track, which would strongly tend to' so throw the weight of his load to the left as to cause it to overturn. As a man of ordinary intel-*331ligenee, all that must have "been perfectly plain to- plaintiff if he gave the attention to his surroundings and movements which, as a person of ordinary care, he ought to have given. The act of returning to the highway was a natural and probable result of going out of the same. It completed the chain or succession of events reaching from the first act of negligence mentioned to the unfortunate event, for which respondent seeks compensation of defendant. The legal result is plain.

It is not often that a case is presented which so perfectly illustrates the doctrine of proximate cause in the law of negligence, the importance of it and its applicability to an action to recover compensation for an injury alleged to have been caused by the insufficiency of a highway, the same as to every action grounded on negligence of the defendant. The immediate cause of plaintiff’s injury was the condition of the highway in that it was in a narrow cut at the place where-the injury occurred, but the proximate cause thereof was the negligence of respondent in going into the cut as he did and paying no attention to whether a team was already in there, approaching from the south, till he had passed by the last place where he could have safely turned out. That first act of negligence set all the other events in motion, each being started by the one which preceded it,, down to the instant of the injury. They were all linked together in close causal connection, and with all the essentials of legal responsibility, so that, conceding that the highway was insufficient, as found, the negligence of respondent intervened and gave the impulse which did not spend itself till his injury occurred, and which, in a legal sense, at least, was the responsible cause thereof, or, in any view that can be taken of the matter, contributed to cause it.

It does not seem that anything need be or can be profitably added by further discussing this case. The principles of law involved are all so firmly settled as not to be open to ques*332tion. They have been so often discussed that an opinion should not, it seems, be incumbered by citing authorities in respect thereto'. There is no serious conflict, if any, in the matters from which the inferences spring as to respondent’s want of care and its causal connection with the injury here received. On the theory that must prevail, in view of the peculiar character of respondent’s load — assuming that the highway was as dangerous as the jury found it to' be, and that ordinary care required respondent not to thoughtlessly drive into the place, where he knew or must have known he could not safely pass a team coming from the south, without first looking in that direction to observe whether there was one coming when he yet had an opportunity to safely turn out, — all of the findings of fact of the jury, on the subject of whether he was negligent or not, and whether fault on his part contributed to or caused his injury, are against him, except the mere conclusions, which, from the manner in which the verdict is framed, were reached only by reasoning from such favorable findings. The finding as to whether, the insufficiency of the highway was "the proximate cause of the accident, and the one covering the subject of plaintiff’s contributory negligence, are plainly out of harmony with the facts on which they are based. After the jury reached the conclusion that respondent had ample opportunity to see the team approaching from the south, and to avoid meeting it in that part of the cut where neither team could be turned out sufficiently to allow the other to safely pass by, in view of the undisputed evidence that he was perfectly familiar with the road and had a load of a character which rendered any attempt to haul it on a very sidling place especially hazardous, and that he nevertheless passed by the last place where he could safely have turned out, without seeing the team approaching or making any effort to discover if such was the situation, it would seem that it required but an appeal to common knowledge to reach a con-*333elusion contrary to the answers given by the jury to questions 12 and 14. Those answers and the other findings and undisputed evidence are so inconsistent with each other, that we must conclude that the jury misunderstood the instructions given hy the trial court in regard to the legal essentials of the cause of the accident in order to fix legal responsibility therefor upon the defendant.

This case is of a character where there is great danger of a jury not understanding and properly applying the law unless it is explained to them with considerable care. It seems that the mere use of legal terms, which are plain to one trained in the law, does not always convey the correct idea to a jury of the essentials of proximate cause. Nevertheless, of course, if a trial judge contents himself with a mere statement of the principles of the subject in the language of the law, his duty is so far performed that no prejudicial error can be assigned for want of a more definite explanation thereof. Had the jury understood that it was necessary for them, in determining what was the efficient or real producing cause of the accident and whether respondent was guilty of contributory negligence, to go back from the instant of the injury, step by step, in the chain of causal connection, to the first act which was at the foundation of the mischief, the one which started the chain of events in motion, and name it the proximate cause thereof, understanding that it was essential to rich first act being so named for each event in the chain in regular succession to be a natural and probable result of the one that prei-ceded it, and one which a person of ordinary care might reasonably have expected, resulting in an injury to person or property, they would in all reasonable probability have reached the conduct of respondent in negligently going into the place of danger before stopping in their search, and would not have retraced, their steps. As it was, they either stopped at or started with the immediate cause of respond*334ent’s turning out of the highway, the insufficient condition thereof at that point for two teams to pass each other. They did not consider the cause which placed respondent in that predicament. In their process of reasoning they clearly either started from the wrong end of the chain, or at a link therein, a course which is liable to lead to error.- A safer way is to set the mental compass at the injury complained of and look backward.

We will illustrate what was last said. A person was injured by his horse or carriage coming in contact with an insufficient condition of a highway while the horse was in a condition of fright and was uncontrollable by the exercise of ordinary care on the part of the driver. The immediate cause of the accident was the insufficiency of the highway, but that, we can readily see at once, was not the proximate cause thereof because of the fright of the horse. That, though not, perhaps, the nearest cause, was a near cause. But we must discover what started the horse to run away, since we cannot see that any failure of the driver to regain control of it intervened to break the causal connection between the cause of the fright and the final result. Proceeding backward on our course we find an object in the highway, liable to frighten a horse of ordinary gentleness so that its driver would lose control of it, without negligence on his part, and that such object caused the condition of fright and uncontrollability in the case in question. We cannot stop yet, however, and call the insufficiency of the highway caused by such object the proximate cause of the accident. Looking further, we find that the object which caused the fright was placed in the highway by the action of the elements. So if we were to stop with the mere defective condition of the highway we would be at a mere link in our chain, and if we were to stop at the cause which made the highway defective by placing the object therein we would not reach any responsible cause, especially since the fright *335of tbe borse rendered tbe driver incapable of doing anything, reasonably, by ordinary care, to avoid tbe danger at tbe farther end of tbe chain. Looking further, we find that tbe condition of tbe highway caused by tbe object which frightened tbe borse bad existed for so long a time that tbe officers of tbe town knew of it, or ought to have known of it, for a sufficient length of time to enable them, by tbe exercise of reasonable diligence, to have removed tbe danger; that they ought to have done so, and that tbe town is responsible for their negligence. Now we have found tbe two ends of a complete chain of responsible causation, one end thereof being tbe negligence of tbe town, and tbe other tied to tbe unfortunate event, tbe injury to the driver of tbe horse. We have tbe complete succession of events from tbe negligence of tbe town to tbe injury. We have every element of responsible causation. An object in tbe highway, rendering it insufficient because of tbe negligence of tbe town, tbe fright of a borse of ordinary gentleness and its becoming uncontrollable by reason of such object notwithstanding ordinary care on tbe part of its driver, a resulting injury before, by tbe exercise of ordinary care, be could regain control of the borse, an injury to person or property in tbe lawful use of tbe highway by a traveler thereon, as a natural and probable result thereof, and tbe defective highway was a circumstance which any person of ordinary intelligence ought reasonably to have apprehended might probably cause an injury to tbe person or property of a traveler thereon, tbe last element springing as a matter of law from tbe insufficient condition of tbe highway, whether it is a test thereof or not. *Draper v.*Ironton, 42 Wis. 696; *Peake v. Superior,*106 Wis. 403; *Rhyner v.*Menasha, 107 Wis. 201; *Mauch v.*Hartford, 112 Wis. 40. It is easy, it seems, to apply that illustration to this case. It follows closely numerous cases that may be found in tbe books, and covers the principles of proximate cause in tbe law of negligence as they have *336been repeatedly laid down. *Houfe v.*Fulton, 29 Wis. 306; *Jackson v. Bellevieu,*30 Wis. 250; *Andrews v. C., M. & St.*P. *R. Co.*96 Wis. 348; *Deisenrieter v. Kraus-Merkel M. Co.*97 Wis. 279; *McFarlane*v. *Sullivan,*99 Wis. 361.

*By the Court.*— Tbe judgment is reversed and tbe cause remanded with directions to change tbe answer to question-12 of tbe special verdict from yes to no, and tbe answer to question 14 from no to yes, and to render judgment upon tbe verdict as so corrected in favor of tbe defendant, dismissing tbe case with costs.