Ryan, C. J.
I. There is no error in the admission or exclusion of evidence, to disturb the judgment.
Notice of the insufficiency of the highway, or reasonable opportunity of knowing it, was necessary to charge the appellant. Express notice to the authorities of the city was plainly proper. Harper v. Milwaukee, 30 Wis., 365. And the evidence offered that the authorities of the city, upon actual view, were satisfied with the condition of the highway, was clearly inadmissible to excuse the appellant. Sec. 1 of chapt. 5 of the charter, chapt. 237 of 1873, does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street.
The evidence offered that the appellant had expended all the means at its disposal in repairing its streets, had no tendency to excuse it. Every municipality is bound, at its peril, to keep its highway in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways. Seward v. Milford, 21 Wis., 485; Ward v. Jefferson, 24 id., 342; Burns v. Elba, 32 id., 605; Green v. Bridge Creek, 38 id., 449.
The res gestae of this accident did not go with the team to the livery .stable, but remained in the locus in quo with the injured woman. And the declarations of the driver to the liveryman, were a subsequent narrative of the res gestee, not admissible in chief as ofiered; though admissible, upon proper foundation, to contradict the driver. Sorenson v. Dundas, 42 Wis., 642.
II. The charge of the learned judge who presided at the trial in the court below, was severely criticised by the learned [523]*523counsel of the appellant. And it must be confessed that some parts of it are unaccountably confused and inaccurate.
So far as it relates to the negligence of the appellant, it is unnecessary to review it. It may be doubted whether any inaccuracy of the charge oh that point would warrant the reversal of the judgment. For there is no controversy or doubt as to the condition of the highway. It was such that the court would have been warranted in holding it unsafe as matter of law. There was a depression in one of the traveled streets of the city. The authorities raised one-half in width of the street over the depression, by embankment some six feet high in the middle and gradually lessening towards each end. The side of the embankment next the other half of the street, left on its natural level, was precipitous and rough, without railing or barrier to protect travelers from being precipitated over it. It is claimed that each half of the street was sufficient for travel; and that because each half was safe by itself, the whole street was safe. This is a great and mischievous error. A traveled highway must be reasonably safe for travel over its whole surface. Cremer v. Portland,, 36 Wis., 92. A road cut in two by a precipice is almost equally unsafe in fact, is equally insufficient in law, whether the precipice be across or along the highway. Although towns are not generally bound to keep the full width of their highways fit for travel, but only a sufficient width, yet a country road passing along an embankment of the width of that in this case, with a side or sides as precipitous and as unprotected, would under all ordinary circumstances be held dangerous. Houfe v. Fulton, 29 Wis., 296; S. C., 34 id., 608; Jackson v. Bellevieu, 30 id., 250; Kelley v. Fond du Lac, 31 id., 179; S. C., 36 id., 307; Burns v. Elba, supra, Hawes v. Fox Lake, 33 Wis., 438. A fortiori, a traveled street in an incorporated city. Wheeler v. Westport, 30 Wis., 392. In this case the rule applies with peculiar force; for the dangerous character of the street did not come by nature or by accident, but by the will[524]*524ful act of the city authorities. Milwaukee v. Davis, 6 Wis., 377; Harper v. Milwaukee, supra.
But as they bear upon the question of contributory negligence, the inaccuracies of the charge are important.
The learned judge did not correctly state the rule of proof of contributory negligence, in actions for negligence, settled in Hoyt v. Hudson, 41 Wis., 105. It does not put the onus proiandi, in all cases upon the defendant, as the learned judge appears to have stated. The rule intended in that case is, that a plaintiff, giving evidence of the negligence of the defendant and the resulting injury to himself, without showing any contributory negligence, is bound to go no further; he is not required to negative his own negligence. If, however, the plaintiff, in proving the injury, shows contributory negligence sufficient to defeat the action, he disproves his own case of injury by the negligence of the defendant alone. If the plaintiff’s evidence leave no doubt of the fact, his contributory negligence is taken as matter of law to warrant a nonsuit. If the plaintiff’s evidence leave the fact in doubt, the evidence of contributory negligence on both sides should go to the jury. This was perhaps not as clearly stated as it might have been, and has been criticised. Properly understood, the rule in Hoyt v. Hudson makes no confusion between the burden of proof and the weight of evidence; is sounder in principle and easier in practice than the rule in Massachusetts which, with great deference for that court, this court then declined to adopt. The true ground of reversal in Hoyt v. Hudson was, that the charge of the court submitted the question of contributory negligence to the jury, when there was no evidence of contributory negligence on either side; giving the jury to believe that the plaintiff was bound affirmatively to disprove it.
The learned judge instructed the jury that if the driver of the carriage was so grossly negligent or careless as to contribute to the injury, the respondent could not recover. Travel[525]*525ers are always held to the exercise of ordinary care. Slight want of ordinary care will defeat an action for injury caused by defect in a highway. This was perhaps what the charge intended. The learned judge told the jury elsewhere that the driver was held to ordinary prudence; but said, in the same connection, that if this person was driving as one ordinarily drives, not thinking of danger, and thus met the accident, he was guilty of no negligence. All this, taken together, is not very clear. Ordinary care in such a case, is care against danger. It is carelessness, not care, which in such a case has no thought of danger. Driving in the dark without thinking of danger, as one “ whistling for want of thought,” is surely not ordinary care. The fair inference, perhaps, from the somewhat loose dicta of the charge, the inference which the jury probably drew, is, that want of ordinary care to defeat the action must be gross; dealing with gross negligence as gross want of ordinary care. The degree of contributory negligence which will defeat an action has been repeatedly settled by this court, and may be given to juries without difficulty in plain and unambiguous terms. Dreher v. Fitchburg, 22 Wis., 675; Ward v. Railway Co., 29 id., 144; Wheeler v. Westport, supra; Hammond v. Mukwa, 40 Wis., 35; Griffin v. Willow, ante, p. 509.
The charge is still more unhappy in giving the measure of proof to establish contributory negligence on the'part of the driver. The learned judge tells the jury, in effect, that contributory negligence must be proved conclusively to their minds.
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Ryan, C. J.
I. There is no error in the admission or exclusion of evidence, to disturb the judgment.
Notice of the insufficiency of the highway, or reasonable opportunity of knowing it, was necessary to charge the appellant. Express notice to the authorities of the city was plainly proper. Harper v. Milwaukee, 30 Wis., 365. And the evidence offered that the authorities of the city, upon actual view, were satisfied with the condition of the highway, was clearly inadmissible to excuse the appellant. Sec. 1 of chapt. 5 of the charter, chapt. 237 of 1873, does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street.
The evidence offered that the appellant had expended all the means at its disposal in repairing its streets, had no tendency to excuse it. Every municipality is bound, at its peril, to keep its highway in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways. Seward v. Milford, 21 Wis., 485; Ward v. Jefferson, 24 id., 342; Burns v. Elba, 32 id., 605; Green v. Bridge Creek, 38 id., 449.
The res gestae of this accident did not go with the team to the livery .stable, but remained in the locus in quo with the injured woman. And the declarations of the driver to the liveryman, were a subsequent narrative of the res gestee, not admissible in chief as ofiered; though admissible, upon proper foundation, to contradict the driver. Sorenson v. Dundas, 42 Wis., 642.
II. The charge of the learned judge who presided at the trial in the court below, was severely criticised by the learned [523]*523counsel of the appellant. And it must be confessed that some parts of it are unaccountably confused and inaccurate.
So far as it relates to the negligence of the appellant, it is unnecessary to review it. It may be doubted whether any inaccuracy of the charge oh that point would warrant the reversal of the judgment. For there is no controversy or doubt as to the condition of the highway. It was such that the court would have been warranted in holding it unsafe as matter of law. There was a depression in one of the traveled streets of the city. The authorities raised one-half in width of the street over the depression, by embankment some six feet high in the middle and gradually lessening towards each end. The side of the embankment next the other half of the street, left on its natural level, was precipitous and rough, without railing or barrier to protect travelers from being precipitated over it. It is claimed that each half of the street was sufficient for travel; and that because each half was safe by itself, the whole street was safe. This is a great and mischievous error. A traveled highway must be reasonably safe for travel over its whole surface. Cremer v. Portland,, 36 Wis., 92. A road cut in two by a precipice is almost equally unsafe in fact, is equally insufficient in law, whether the precipice be across or along the highway. Although towns are not generally bound to keep the full width of their highways fit for travel, but only a sufficient width, yet a country road passing along an embankment of the width of that in this case, with a side or sides as precipitous and as unprotected, would under all ordinary circumstances be held dangerous. Houfe v. Fulton, 29 Wis., 296; S. C., 34 id., 608; Jackson v. Bellevieu, 30 id., 250; Kelley v. Fond du Lac, 31 id., 179; S. C., 36 id., 307; Burns v. Elba, supra, Hawes v. Fox Lake, 33 Wis., 438. A fortiori, a traveled street in an incorporated city. Wheeler v. Westport, 30 Wis., 392. In this case the rule applies with peculiar force; for the dangerous character of the street did not come by nature or by accident, but by the will[524]*524ful act of the city authorities. Milwaukee v. Davis, 6 Wis., 377; Harper v. Milwaukee, supra.
But as they bear upon the question of contributory negligence, the inaccuracies of the charge are important.
The learned judge did not correctly state the rule of proof of contributory negligence, in actions for negligence, settled in Hoyt v. Hudson, 41 Wis., 105. It does not put the onus proiandi, in all cases upon the defendant, as the learned judge appears to have stated. The rule intended in that case is, that a plaintiff, giving evidence of the negligence of the defendant and the resulting injury to himself, without showing any contributory negligence, is bound to go no further; he is not required to negative his own negligence. If, however, the plaintiff, in proving the injury, shows contributory negligence sufficient to defeat the action, he disproves his own case of injury by the negligence of the defendant alone. If the plaintiff’s evidence leave no doubt of the fact, his contributory negligence is taken as matter of law to warrant a nonsuit. If the plaintiff’s evidence leave the fact in doubt, the evidence of contributory negligence on both sides should go to the jury. This was perhaps not as clearly stated as it might have been, and has been criticised. Properly understood, the rule in Hoyt v. Hudson makes no confusion between the burden of proof and the weight of evidence; is sounder in principle and easier in practice than the rule in Massachusetts which, with great deference for that court, this court then declined to adopt. The true ground of reversal in Hoyt v. Hudson was, that the charge of the court submitted the question of contributory negligence to the jury, when there was no evidence of contributory negligence on either side; giving the jury to believe that the plaintiff was bound affirmatively to disprove it.
The learned judge instructed the jury that if the driver of the carriage was so grossly negligent or careless as to contribute to the injury, the respondent could not recover. Travel[525]*525ers are always held to the exercise of ordinary care. Slight want of ordinary care will defeat an action for injury caused by defect in a highway. This was perhaps what the charge intended. The learned judge told the jury elsewhere that the driver was held to ordinary prudence; but said, in the same connection, that if this person was driving as one ordinarily drives, not thinking of danger, and thus met the accident, he was guilty of no negligence. All this, taken together, is not very clear. Ordinary care in such a case, is care against danger. It is carelessness, not care, which in such a case has no thought of danger. Driving in the dark without thinking of danger, as one “ whistling for want of thought,” is surely not ordinary care. The fair inference, perhaps, from the somewhat loose dicta of the charge, the inference which the jury probably drew, is, that want of ordinary care to defeat the action must be gross; dealing with gross negligence as gross want of ordinary care. The degree of contributory negligence which will defeat an action has been repeatedly settled by this court, and may be given to juries without difficulty in plain and unambiguous terms. Dreher v. Fitchburg, 22 Wis., 675; Ward v. Railway Co., 29 id., 144; Wheeler v. Westport, supra; Hammond v. Mukwa, 40 Wis., 35; Griffin v. Willow, ante, p. 509.
The charge is still more unhappy in giving the measure of proof to establish contributory negligence on the'part of the driver. The learned judge tells the jury, in effect, that contributory negligence must be proved conclusively to their minds. Conclusive presumptions relate rather to matters of law than matters of fact. When a judgment determines a fact, the fact is conclusively established between the parties. But it is conclusive, by force of the judgment, not by force of the evidence on which the judgment proceeds. Evidence cannot well establish litigated questions of mere fact conclusively. Juries are never held to find mere matters of fact on conclusive evidence. In civil causes, preponderance of evi[526]*526dence is sufficient. In criminal prosecutions, guilt is to be proved not conclusively, but only beyond reasonable doubt.
There is nothing elsewhere in the charge to obviate or qualify this error. Taken with the rule of the burden of proof, as the jury must have understood it, the charge is, that the evidence given by the appellant must conclusively satisfy the jury of contributory negligence to defeat the action. It may be, as was urged, that the verdict would not have been different, had the rule of contributory negligence, and of the evidence sufficient to establish it, been correctly given to the jury. This court cannot usurp the function of the jury to say so. There was some evidence — it would be improper to say of what weight — tending towards contributory negligence. And the verdict cannot be sustained under the charge, if the respondents are answerable for the negligence of the driver.
IIT. The case appears to have been tried in the court below upon the theory that the right of the respondents to recover would be defeated by contributory negligence of the driver, without personal negligence of the female respondent; as seems to have been taken for granted by this court in Houfe v. Fulton, supra. But the learned counsel for the respondents takes the position here, that his clients are entitled to recover, notwithstanding negligence of the driver; no evidence in the case tending to attribute personal negligence to the injured woman herself. And there is some authority for his position.
When injury is caused by the concurring negligence of two common carriers, it has for many years been a question, whether the negligence of the carrier by which a passenger is carried can be imputed to him as contributory negligence in an action against the other carrier. There appears to be no uniform rule of decision. In England it seems to have been held that the negligence of his own carrier will defeat the action of a passenger against the other carrier. Bridge v. G. J. Railway Co., 3 M. & W., 244; Thorogood v. Bryan, 8 C. B., [527]*527115; Cattlin v. Hills, id., 123. In New York, the rule appears to be that the injured passenger may recover in such a case against either or both of the carriers. Chapman v. N. Y. Railroad Co., 19 N. Y., 341; Colegrove v. N. Y. & N. H. Railroad Co. & N. Y. & H. Railroad Co., 20 id., 492. So it has been held in New Jersey that negligence of a carrier cannot be imputed to a passenger carried by it to defeat his recovery against the other carrier. Bennett v. N. J. Railroad Co., 36 N. J., 225. Pennsylvania seems inclined to lean somewhat towards the English rule. Lockhart v. Lichtenthaler, 46 Pa. St., 151. In this case, Thompson J., cites a Michigan case
Aside from questions of public policy affecting the duty and liability of common carriers, which enter into some of these cases, the question appears to be how far common carriers can be considered as agents of passengers carried by them. "We think that there is no case in this court bearing on this question, and it is unnecessary here to indicate 'an opinion upon it. It is proper to say, however, that, in the present state of society, it is a substantial necessity for all or most travelers to avail themselves of public conveyances; and that there might be great difficulty in applying to them the rule of personal trust and agency applicable to private conveyances.
In the latter case, when the agency of a person in control of a private conveyance is express, there is no difficulty in the rule. The contributory negligence of the servant will defeat the master’s action for negligence against a third person. And it seems that there ought to be as little difficulty in the [528]*528Rule when the agency is implied only. One voluntarily in a private conveyance, voluntarily trusts his personal safety in the conveyance to the person in control of it. Voluntary entrance into a private conveyance adopts the conveyance for the time being as one’s own, and assumes the risk of the skill and care of the person guiding it. Pro Jiao vice, the master of a private yacht or the driver of a private carriage is accepted as agent by every person voluntarily committing himself to it. When jpaterfamilias drives his wife and child in his own vehicle, he is surely their agent in driving them, to charge them with his negligence. It is difficult to perceive on what principle he is less the agent of one who accepts his or their invitation to ride with them. There is a personal trust in such cases, which implies an agency. So several persons voluntarily associating themselves to travel together in one conveyance, not only put a personal trust in the skill and care of that one of them whom they trust with the direction and control of the conveyance, but appear to put a personal trust each in the discretion of each against negligence affecting the common safety. One enters a public conveyance, in some sort, of moral necessity. One generally enters a private conveyance of free choice; voluntarily trusting to its sufficiency and safety. It appears absurd to hold that one voluntarily choosing to ride in a private conveyance, trusts to the sufficiency of the highway, to the care and skill exercised in all other vehicles upon it, to the care and skill governing trains at railroad crossings, to the care and skill of everything except that which is most immediately important to himself; and trusts nothing to the sufficiency of the very vehicle in which he voluntarily travels, nothing to the care or skill of the person in charge of it. ITis voluntary entrance is an act of faith in the driver; by implication of law, accepts the driver as his agent to drive him. In the absence of express adjudication, the general rules of implied agency appear to sanction this view.
Beck v. E. R. Ferry Co., 6 Roberts., 82, turned upon the [529]*529liability of a steam vessel for the death of one of a party in a small boat, apparently a pleasure boat. Contributory negligence of the party in the boat was a question in the case. And it is said: “ The deceased was undoubtedly chargeable with any neglect of his comrades, as wéll as his own, to do every act to avoid danger and insure safety, at least unless he did all he could to repair the deficiency. None of them stood in the light of either employer or employed to the other; it was a joint expedition, in which each was liable for the acts and omissions of the other, unless he took some separate steps to repair or prevent the result of the negligence of the others.”
This case is not expressly overruled, but seems rather to be approved in Robinson v. N. Y. C. Railroad Co., 66 N. Y., 11. But the two cases appear none the less to conflict in principle. Robinson v. Railroad Co. turned upon liability for injury by a railroad train to a female, voluntarily riding with a male friend on his invitation. The court holds that the action was not defeated by the man’s contributory negligence. The court remarks that the man and woman were not engaged in a joint enterprise, in the sense of mutual responsibility for each other’s acts, as in Beck v. Ferry Co. It is difficult to comprehend the distinction. The court says that it was the case of a gratuitous ride, by a female, upon the invitation of the owner of a horse and carriage. Doubtless; but there was the same mutual agreement of the two to travel together, as of the several to sail together, in Beck v. Ferry Co. These were, in contemplation of law, as much in the same boat as those. A woman may and should refuse to ride with a man, if she dislike or distrust the man, or his horse, or his carriage. But if she voluntarily accept his invitation to ride, the man may, indeed, become liable to her for gross negligence; but as to third persons, the man is her agent to drive her — she takes man and horse and carriage for the jaunt, for better, for worse.
Speaking of the position of counsel, that the woman voluntarily entrusted her safety to the man’s care and prudence, and [530]*530exposed herself to risk from bis negligence or want of skill, the court says: “ If this argument is sound, why should it not apply in all cases to public conveyances as well as private? The acceptance of an invitation to ride creates no more responsibility for the acts of the driver, than the riding in a stage coach, or even a train of cars.” The same court in another pase truly declares that traveling by public lines of carriage has become a practical necessity.. And this question appears to be briefly but sufficiently answered by itself in Chapman v. N. H. Railroad Co., supra. Speaking of the plaintiff in that case, it is said: “lie was a passenger on the Harlem cars ..bound to submit to the regulations of the company and the directions of their officers. He had no control, no management, even no advisory power, over the train on which he was riding. Even as to selection, he had only the choice of going by that railroad or by none.” Indeed, it seems little less than idle to compare the relation of a woman voluntarily riding for her pleasure with her lover, friend or relative in his carriage, with the relation of a passenger to the carrier on whose cars or vessel he is practically obliged to travel.
To the same effect are Knapp v. Dagg, 18 How. Pr., 165, and Metcalf v. Baker, 11 Abbott, N. S., 431, also cited by the respondent’s counsel, on which particular comment is unnecessary.
These are all the cases cited by counsel. The question was suggested rather than argued on one side, and not mentioned on the other. We have had brief opportunity to search for adjudications on the subject: another instance of the dependence of the court on the bar. We have found but one other case, a very elaborate one, though this point is decided rather than discussed, as in Houfe v. Fulton, supra. The facts of the case make it a very strong one. A female servant was riding with her master in his wagon, which was wrecked by a railroad train. The master was guilty of contributory negli[531]*531gence, against which the servant appears to have warned him. Yet his contributory negligence was held to defeat her action against the railroad company. L. S. & M. S. Railroad Co. v. Miller, 25 Mich., 274.
This view appears to be sounder in principle and safer in practice than the rule in Robinson v. Railroad Co. And this court adheres to the rule of decision in Houfe v. Fulton.
By the Court. — The judgment is reversed, and the cause remanded to the court below for a new trial.
Since this opinion was written, this case was found to be incorrectly quoted. It is D. L. & N. Turnpike Co. v. Stewart, 2 Metc., Ky., 119.