#### Krause, Administratrix, Appellant, vs. City of Merrill, Respondent.

*October 22*

November *11, 1902.*

*Highway: Unguarded embanhment: Injury to traveler: Contributory negligence.*

Plaintiff’s intestate, while traveling in the evening on a highway, voluntarily turned his team at right angles to the traveled roadway and drove down an unguarded embankment to a railroad track, and then, instead of attempting to extricate himself from danger, drove heside the track with the wheels on one side so elevated on the hank that after going a few feet the wagon tipped over, catching him under the hox in such a way that he was killed. He had been drinking, hut was competent to manage the team, which was very slow and gentle and at no time got beyond his control. *Held,*that he was guilty of contributory negligence, precluding a recovery for his death.

Appeal from a judgment of the circuit court for Lincoln county: W. C. SilveethoeN, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment of nonsuit granted at *527tbe close of all tbe testimony, in an action to recover damages for tbe death of tbe plaintiff’s intestate, alleged to bave been caused by a defect at tbe west end of Division street in tbe defendant city.

It appears from tbe record that tbe deceased, Edward Krause, lived in tbe town of Cornish, about six miles west of tbe city of Merrill; that about 8 o’clock on tbe evening of October 17, 1900, be started toward bis borne with a team and wagon, driving in a westerly direction, and, instead of turning at tbe intersections of State and Division streets, or Cottage and Division streets, to get to bis borne, be continued driving directly west on Division street to tbe place where tbe accident occurred. At tbe end of Division street there was an embankment eighteen feet higher than tbe spur railroad track below, running northwest and southeast for a considerable distance north of tbe north line and south of tbe south line of that street. There were no' barriers or lights at that place to warn travelers and prevent them from going over such embankment. After Division street terminated, as it appears on the record plat, there was a traveled track or roadway extending in a northwesterly direction onto private property, and used as a sort of an alley by tbe property owners living in tbe block north of the west end of Division street. Just at the place where this traveled track turns north, and right at the north line of tbe west end of Division street, there was a shed, from the southwest corner of which it was twenty-two feet directly southwest to the edge of the embankment, tbe first twelve feet of which was level, but tbe 'remaining part of which was rough and sloping to the edge of the embankment; and from there there was a gradual descent down to the bottom of the embankment, near the spur track of the Chicago, Milwaukee & St. Paul Eailway Company, running in a northwesterly direction. Erom the southwest corner of the shed directly west to tbe edge of the embankment was a distance of only about sixteen feet, the west*528ern part of which was rough and uneven and sloping toward the edge of’ the embankment.

The deceased drove west on the traveled track or roadway, gradually turning to the north as he came near the southwest corner of the shed, and thence directly north, and when he reached a point about twelve feet north of that corner of the shed his horses turned from the traveled track, and went directly west to the bank, and over the edge thereof substantially at right angles with the traveled track leading north, and down over the bank to the railroad spur track below; gradually turning to the left or southwest until they reached the bottom down near the railroad spur track. The wagon passed along by the side of the railroad southerly, for about the length of two horses, in such a manner that the left wheels were higher than the right ones, so that the wagon tipped over to the right and toward the railroad track. From the top of the embankment where the deceased drove over, straight down to the spur track, was about twenty-five feet. From the point where the horses went over the edge' of the embankment to the place where they stopped was about thirty feet. The slope appears to have been gradual, but rough and irregular. The nearest light from where the accident occurred was1 an arc light at the intersection of Division and State streets, about two and one-half blocks aw'ay, or about T50 feet east of thp place of the accident; and the edge of the embankment on a direct line with the center of Division street was five feet higher than the point where such light was located. The night was dark, and there was no moon. There was a double box onthe wagon, and the deceased had three kegs of beer in the box. The indentations made by tire wheels and the horses’ tracks showed that they did not go rapidly, and were not unmanageable in any way, but went slowly, — the marks of the horses’ feet'being straight in,— showing that the team stopped or nearly stopped just as they passed over the edge of the embankment going down. The *529following morning the wagon was found tipped over toward the railroad track, with the body of Krause under the bos, lifeless, the horses still there, — one of them hitched by one tug, and the other slightly hitched to the wagon by a strap,- — ■ in which condition they appeared to have been all night. The wagon was lying parallel with the railroad track, with the tongue turned around to the right and upon the railroad track. The body of Krause was lying three or four feet from the track, with the edge of the box across his body.

The cause was submitted for the appellant on a brief by *Bump, Marchetti & Bump*and *F. J. Smith,*counsel, and a supplemental brief by *Bump, Marchetti & Bump,*attorneys, and for the respondent on the brief of *M. G. Porter,*attorney, and *W. H. Flett,*of counsel.

Cassobay, C. *J.*

The facts in this case are practically undisputed, and substantially as mentioned in the foregoing statement. In granting a nonsuit, the trial court assumed that the evidence was sufficient to take the case to the jury on the question as to whether the traveled track west and north of Division street was a public highway, and, if so, whether it was defective. The nonsuit was granted on the ground that after driving about twelve feet north of the southwest corner of the shed the deceased, as indicated in the statement of facts, voluntarily turned his team, which was going directly north, around to the west, and then drove the same directly west, over and down the embankment, to the bottom, near to the spur track; and then, instead of attempting to extricate himself from danger, he drove in a southeasterly direction, and parallel to the spur track, with the off wheels at the bottom of the embankment and the near wheels so elevated that, after driving a few feet, the wagon tipped over toward the spur track, and caught him under the box in such a way that he expired before morning. The evidence is uncontradicted *530that he had a very slow, gentle team; that although he had been drinking more or less, yet that he was competent to manage his team, and at no time lost control of his team. This is apparent from the manner of going down the embankment with the three kegs of beer rolling about in the wagon box, and the deceased remaining on or in the box until the wagon tipped over and onto him. Nothing need be added to the undisputed evidence. From that it appears that the deceased was guilty of contributory negligence, and hence that the nonsuit was properly granted. If authority is needed to support so plain a proposition, we would cite the following: *Hawes v. Fox*Lake, 33 Wis. 438; *Goellz v.*Ashland, 75 Wis. 642, 44 N. W. 770; *Welsh v. Argyle,*89 Wis. 649, 62 N. W. 517; *Stricker v.*Reedsburg, 101 Wis. 457, 77 N. W. 897.

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