#### Hammacher Appellant, vs. Town of New Berlin, Respondent.

*January 31*

February *21, 1905.*

*Highways: Duty of town: Injury to pedestrian on footpath: Absence ■of railing at culvert: Proximate cause: Judgment*non obstante.

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

2. One who, while walking at night in a footpath, not prepared for public travel, beside a country road with which he was familiar, failed to follow such path into the traveled roadway and over a culvert, and so walked into a ditch and was injured, cannot recover from the town for such injury.

3. The absence of any railing or guard to prevent a traveler on the prepared roadway from falling off the end of the culvert, is inl-material in such a case, since such a railing would not have prevented the accident.

4. Where on the undisputed facts a verdict for defendant should have been directed, it is proper to grant judgment for defendant notwithstanding the verdict.

Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dice, Circuit Judge.

*Affirmed.*

This is an action for personal injuries received by the plaintiff while walking on a highway in the defendant town *250April 16, 1901, at about balf past 8 o’clock p. m. Tbe facts were not in dispute. Tbe highway in question runs east and west, and is a well-traveled country road, fifty feet in width. There is a smooth, graveled roadway in the center, fifteen feet ór more in width. A culvert, made of a round drain tile, two feet in diameter, and laid at a depth of three and one balf feet below the surface, crossed the traveled roadway nearly at right angles, for the purpose of draining surface water from the higher lands south of the highway to lower lands upon the north. The pipe in question was about twenty feet long, and emptied into an open ditch at the north end, which ditch extended northward across the remainder of tire highway. There was no railing at the north end of the culvert nor at the sides of the ditch. The plaintiff lived about 300 feet west of the culvert, on the no'rth side of the road, and was well acquainted with the highway and the culvert. About 400 feet east of the culvert, on the north side of the road, was the store of -one Ingersoll. There was no prepared footway on either side of the highway, but there was a narrow footpath made by pedestrians on the north side, running from the Ingersoll store to a point about eight feet east of the culvert, at which place it curved to the south and came up to the traveled road, into which it merged. The plaintiff testified that the evening in question was very dark; that he left the Inger-soll store, and was going home, and walked along this footpath ; that he did not notice the turn in the path, and walked on and fell into the ditch just about a foot north of the culvert, and fractured the kneecap of his left leg.

The jury rendered the following special verdict:

“(1) Was the plaintiff injured as claimed at the place alleged in the complaint? *A.*Yes., (2) Was the highway in question, at the time and place of the plaintiff’s said injury, in such condition that an injury to an ordinarily prudent traveler thereon would be the natural and probable result? A. Yes. (3) If you answer the second question ‘Yes,’ then ought such condition of the highway in question reasonably *251to bave been foreseen and anticipated by reasonably prudent officers of tbe defendant town in tbe discharge of their duties as such officers ? A. Yes. (4) Did tbe want of ordinary care on the part of tbe plaintiff contribute to produce tbe injury be received? *A.*No. (5) What sum will compensate tbe plaintiff for bis said injury; that is, In what sum do you assess bis damages for medical and surgical attention and services, medicine; care and nursing rendered him, which was sustained by reason of said injury? *A.*$200. In what sum of money do you assess tbe damages of the plaintiff for tbe earnings which be failed to earn on account of tbe said injury? *A.*$500. In what sum do you assess tbe plaintiff’s damage for tbe bodily and mental pain, suffering, and disability which be has sustained, resulting from tbe said injury? *A.*$800. In what sum do you assess tbe plaintiff’s damages for tbe bodily and mental pain, suffering, and disability which will result, and which tbe plaintiff sustained, from said injury? *A.*$400. In all, at what sum do you assess tbe plaintiff’s damages? *A.*$1,900.”

Tbe plaintiff moved for judgment upon the verdict, and tbe defendant moved for judgment *non obstante,*and also moved to change tbe answers of tbe special verdict. Tbe court changed tbe answers to tbe second and third questions from “Yes” to “No,” and tbe answer to tbe fourth question from “No” to “Yes,” and also changed tbe finding as to damages so that tbe total damages were fixed at $951.25, and entered judgment for tbe defendant, from which tbe plaintiff appeals.

Eor tbe appellant tbe cause was submitted on a brief by P. *G. Lewis.*

Eor tbe respondent there was a brief by *By an, Merton & Newbury,*and oral argument by *E. Merton.*

They argued, among other things, that if tbe usual traveled way of a highway is reasonably open and in safe condition, and tbe traveler is injured because be changes to, or deems it more judicious to take, a side path, which proves unsafe, be cannot recover. *Burr v. Plymouth,*48 Conn. 460, 472; *Ozier v. Hinesburgh,*44 Vt. 220; *Massey v. Columbus,*75 Ga. 658; *Zettler v. Atlanta,*66 Ga. 195; *Bylees v. Pawlet,*43 Yt. 446; *O’Laughlin*
      *252
      *v. Dubuque,*42 Iowa, 539; *Alline v. Le Mars,*71 Io.wa, 654; *Harwood v. Oalcham,*152 Mass. 421. If one, for bis own ■convenience and without necessity, drives outside of the limits of a highway, and is injured there by reason of an excavation, he cannot recover against the municipality as for a defect in the highway. *Biggs v. Huntington,*32 W. Va. 55; *Fitzgerald v. Berlin,*64 Wis. 203.

Winslow, J.

The highway in question was a country road. 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. Such a requirement would involve a greater expense, both for the town and for adjoining landowners, than has been thought reasonable as yet. Possibly the time may come when it will be deemed proper to require sidewalks upon such highways, but that time is not yet. The town has performed its duty 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. *Kelley v. Fond du Lac,*31 Wis. 179. It is true that, if it leaves an unguarded excavation in such close proximity to the traveled and juepai’ed track that passengers using such track are in danger of falling therein while exercising ordinary care, it fails in its duty. So, in the present case, if the plaintiff had been using the-traveled track, and stepped off from the end of the culvert, probably there would have been a question for the jury whether the lack of a rail or guard constituted negligence, and also whether the plaintiff was exercising due care in his traveling. But that was not this case. It is undisputed that the plaintiff was very familiar with the road'and with its condition at this point. lie was knowingly using a part of the highway which had not been prepared for public travel. In so doing he walked into the ditch. No railing or guard designed for the purpose of protecting persons traveling on the *253prepared way from tbe danger of falling off tbe end of tbe-culvert would bave prevented tbe plaintiff from falling into-tbe ditcb. Upon tbe undisputed facts, therefore, be was not entitled to recover, and a verdict for tbe defendant should bave been directed. Failing in this, tbe court properly granted judgment for tbe defendant notwithstanding tbe verdict. *Muench v.*Heinemann, 119 Wis. 441, 96 N. W. 800.

*By the Court.*— Judgment affirmed.