213 Wis. 34 | Wis. | 1933
The construction of the town road involved in this case is not unusual for one in its situation and it does not possess any peculiarity marking it as defective. It is an usual type of dirt road and from photograph and verbal description in the evidence it may be classified as a sufficient road in a rural community sufficient to meet the travel demands. That it was slippery because thawing softened up the surface so that a thin covering of mud was formed, does not render it a defective highway. See Thiele v. Green Bay, 206 Wis. 660, 238 N. W. 834, and cases there cited. If the traveled track of this town road was in such a state of repair as to be reasonably safe for travelers, the town had complied with the obligation placed upon it in the matter of maintaining it. The traveled track had ample capacity for the accommodation of the respondent. Several witnesses gave their estimates of the width of the road for some distance east of the place where respondent was injured. These estimates vary as to its narrowness in certain places. There is some testimony that points to the traveled track being at places around nine feet wide. The surveyor, however, who was produced as a witness by the respondent, testified to the making of measurements and drawing diagrams and maps of the territory including the highway bearing relation to the place of accident. He began his survey on the 23d day of March, 1931, twelve days after the accident. He had been at the scene before this. He made measurements of the distance from the ditch tO' the crown of the road and the distance across the crown. These measurements were made at certain stations which he fixed one hundred feet apart, except near the scene of the accident where he made some additional measurements. He drew, based on these measurements, a map which was offered in evidence and is now before us. The map shows the width of the portion of the road prepared for travel. On this map he drew lines near the center of the road that run parallel with
One cannot exact damage from a town because of injury to himself within the limits of a highway unless caused by some defect existing within or adjacent to the traveled track
It is urged that a railing at some point would have prevented the accident. We cannot indorse the idea that there was any obligation upon the town to build a fence along the highway from some point on the east to beyond the place where the accident happened. The place where the depth of the ditch) below the traveled track was greatest was where the box left the wagon, but a railing on the highway at that point would have been of no assistance to respondent, for he had deviated from the traveled track more than one hundred feet east of that. The physical facts bring considerable confusion to some of the testimony given by respondent, but we do not think it necessary to make any further analysis. From the evidence, picturing and describing the road and its traveled track, we are constrained to hold that there was no defect in the construction of the highway and that the town is not responsible for the injury sustained by respondent.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.