[589]*589Tbe following opinion was filed October 24, 1911:
SiebecKek, J.
The- appellant urges tbe reversal of tbe judgment in plaintiff’s favor upon tbe ground that there is no evidence showing any insufficiency and want of repair of tbe highway, and urges that it appears as matter of law that tbe injury to tbe plaintiff’s automobile was caused by bis contributory negligence.
Tbe evidence is undisputed that no guard, barrier, or fence bad been erected at tbe end of tbe culvert or near tbe ditch connected therewith at its west end. Tbe location of tbe culvert, tbe ditch, and tbe traveled part of tbe highway are as set forth in tbe foregoing statement. Tbe claim is made by tbe appellant that tbe evidence incontrovertibly and clearly shows that tbe city at tbe place in question maintained a reasonably safe road for public use. Tbe evidence is that there was a ditch two feet in width, sixteen inches deep, and from six to eight feet long connected with tbe culvert, which was located in Eidge road on tbe Ninth street crossing, and that tbe travel to and from tbe south over these highways at tbe crossing was about eighteen inches from tbe west end of tbe culvert. It also appears that tbe traveled track on Ninth street was close to tbe margin of tbe ditch,.and that travel over tbe .area at. tbe intersection of tbe two highways bad spread out and covered nearly tbe whole of tbe forty-foot culvert. Tbe ground at this place before tbe grading of tbe highway was almost level, having a gradual • slope southeastward. It is manifest from- tbe facts in evidence that there was no natural object to apprise travelers of tbe existence of tbe ditch and •culvert, aside from tbe open ditch itself, which was in tbe surface of tbe ground, practically level with tbe area formed by tbe intersection of these highways. There is evidence tending to show that tbe culvert was covered with earth to its ■end on tbe west, and that it and tbe ditch connected with it were not readily observable at a distance on account of tbe [590]*590evenness and the similarity of the surface bordering both sides. It is manifest from these conditions of the highway that the ditch constituted a pit at the end of the culvert and that vehicles could not safely pass over it. The general conditions of this highway and its immediately surrounding objects, and the way in which the adjoining tracks over the intersection of the streets were being used, indicate that a pit sixteen inches deep and two feet wide at the end of the culvert' and approximately eighteen inches from the traveled track was such a menace to travelers as to constitute a serious danger to their safety.
It is argued that this does not constitute an insufficiency in the road, because the defendant had provided for public use at this point an amply wide and level traveled track of abont thirty-seven feet in width, and hence that this ditch could not render the place dangerous to travelers properly using it in the exercise of reasonable care. This overlooks an essential factor of what is a reasonably safe highway, namely, whatever may be the width and suitableness of the space actually occupied as a traveled track of a highway “there may exist dangerous defects and obstructions outside of the traveled path, depending on circumstances. Much depends on the nature and situation of the alleged obstruction [defect] and whether it is plainly to be seen or not,” and whether it is so connected with the traveled track as to affect the safety of the public using it in the usual and ordinary way while exercising ordinary care. We are persuaded that the jury were fully justified in their conclusion that this unguarded pit or ditch was such a danger connected with the traveled track as to make it an insufficiency in the highway crossing and rendered it not reasonably safe for use by the traveling public within the principle of the following cases: Wheeler v. Westport, 30 Wis. 392; Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730; Prahl v. Waupaca, 109 Wis. 299, 85 N. W. 350; Jenewein v. Irving, [591]*591122 Wis. 228, 99 N. W. 346, 903; Maxwell v. Wellington, 138 Wis. 607, 120 N. W. 505.
It is farther contended that, if the highway is regarded as insufficient, the plaintiff is not entitled to recover because it appears that he was guilty of contributory negligence which proximately contributed to cause the injury to his automobile. The court submitted the evidence upon this inquiry to the jury under proper instructions and the jury found him free from contributory negligence. The trial court upon review of the case again concluded after verdict that the question of plaintiffs contributory negligence under the evidence was properly for the jury. Counsel’s contention on this issue seems to omit due consideration of the rule that the defense of contributory negligence must be affirmatively established. Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Cantwell v. Appleton, 71 Wis. 463, 37 N. W. 813; Rhyner v. Menasha, 97 Wis. 523, 73 N. W. 41. “The correct inquiry in such case ... is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence” (Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649) which shows plaintiff guilty of a want of ordinary care which proximately contributed to the injury. The facts mainly relied on to show plaintiff’s want of ordinary care that contributed to this injury are that he approached this highway crossing by running the two wheels of his car outside of the traveled track and that he designed to do likewise after passing this crossing, that he took a course over the crossing which, had he proceeded straight forward, would have run the left front wheel into the ditch as well as the right wheel, and that he omitted to keep a lookout for the ditch or pit until he had approached it so closely that he could not turn his car so as to pass over the culvert in safety. It must be borne in mind that plaintiff was within the traveled portion of the highway at the time he first saw this pit, that [592]*592be was traveling at a lawful rate of speed, and tbat tbe evidence is uncontroverted tbat be was giving bis attention to and observing tbe road at tbe crossing and to tbe south of tbe crossing; tbat be testified tbat be did not observe tbe pit until be was witbin ten or twelve feet of it; tbat be tben did all be could to stop tbe car and all be could to steer it to tbe east to avoid tbe ditch, but failed by about a foot and one-balf. It appears tbat up to tbe time be saw tbe pit be traveled upon tbe proper part of tbe highway, tbat it was difficult for travelers on tbe road to see tbe pit on account of its obscurity in tbe light of tbe conditions surrounding it, and tbat it was so connected with tbe traveled tract as to render tbe road unsafe and dangerous for travel. Tbe defective condition of tbe highway has an important bearing on tbe other facts interpreting tbe significance of tbe plaintiffs action. See Cantwell v. Appleton, 71 Wis. 463, 37 N. W. 813.
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[589]*589Tbe following opinion was filed October 24, 1911:
SiebecKek, J.
The- appellant urges tbe reversal of tbe judgment in plaintiff’s favor upon tbe ground that there is no evidence showing any insufficiency and want of repair of tbe highway, and urges that it appears as matter of law that tbe injury to tbe plaintiff’s automobile was caused by bis contributory negligence.
Tbe evidence is undisputed that no guard, barrier, or fence bad been erected at tbe end of tbe culvert or near tbe ditch connected therewith at its west end. Tbe location of tbe culvert, tbe ditch, and tbe traveled part of tbe highway are as set forth in tbe foregoing statement. Tbe claim is made by tbe appellant that tbe evidence incontrovertibly and clearly shows that tbe city at tbe place in question maintained a reasonably safe road for public use. Tbe evidence is that there was a ditch two feet in width, sixteen inches deep, and from six to eight feet long connected with tbe culvert, which was located in Eidge road on tbe Ninth street crossing, and that tbe travel to and from tbe south over these highways at tbe crossing was about eighteen inches from tbe west end of tbe culvert. It also appears that tbe traveled track on Ninth street was close to tbe margin of tbe ditch,.and that travel over tbe .area at. tbe intersection of tbe two highways bad spread out and covered nearly tbe whole of tbe forty-foot culvert. Tbe ground at this place before tbe grading of tbe highway was almost level, having a gradual • slope southeastward. It is manifest from- tbe facts in evidence that there was no natural object to apprise travelers of tbe existence of tbe ditch and •culvert, aside from tbe open ditch itself, which was in tbe surface of tbe ground, practically level with tbe area formed by tbe intersection of these highways. There is evidence tending to show that tbe culvert was covered with earth to its ■end on tbe west, and that it and tbe ditch connected with it were not readily observable at a distance on account of tbe [590]*590evenness and the similarity of the surface bordering both sides. It is manifest from these conditions of the highway that the ditch constituted a pit at the end of the culvert and that vehicles could not safely pass over it. The general conditions of this highway and its immediately surrounding objects, and the way in which the adjoining tracks over the intersection of the streets were being used, indicate that a pit sixteen inches deep and two feet wide at the end of the culvert' and approximately eighteen inches from the traveled track was such a menace to travelers as to constitute a serious danger to their safety.
It is argued that this does not constitute an insufficiency in the road, because the defendant had provided for public use at this point an amply wide and level traveled track of abont thirty-seven feet in width, and hence that this ditch could not render the place dangerous to travelers properly using it in the exercise of reasonable care. This overlooks an essential factor of what is a reasonably safe highway, namely, whatever may be the width and suitableness of the space actually occupied as a traveled track of a highway “there may exist dangerous defects and obstructions outside of the traveled path, depending on circumstances. Much depends on the nature and situation of the alleged obstruction [defect] and whether it is plainly to be seen or not,” and whether it is so connected with the traveled track as to affect the safety of the public using it in the usual and ordinary way while exercising ordinary care. We are persuaded that the jury were fully justified in their conclusion that this unguarded pit or ditch was such a danger connected with the traveled track as to make it an insufficiency in the highway crossing and rendered it not reasonably safe for use by the traveling public within the principle of the following cases: Wheeler v. Westport, 30 Wis. 392; Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730; Prahl v. Waupaca, 109 Wis. 299, 85 N. W. 350; Jenewein v. Irving, [591]*591122 Wis. 228, 99 N. W. 346, 903; Maxwell v. Wellington, 138 Wis. 607, 120 N. W. 505.
It is farther contended that, if the highway is regarded as insufficient, the plaintiff is not entitled to recover because it appears that he was guilty of contributory negligence which proximately contributed to cause the injury to his automobile. The court submitted the evidence upon this inquiry to the jury under proper instructions and the jury found him free from contributory negligence. The trial court upon review of the case again concluded after verdict that the question of plaintiffs contributory negligence under the evidence was properly for the jury. Counsel’s contention on this issue seems to omit due consideration of the rule that the defense of contributory negligence must be affirmatively established. Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Cantwell v. Appleton, 71 Wis. 463, 37 N. W. 813; Rhyner v. Menasha, 97 Wis. 523, 73 N. W. 41. “The correct inquiry in such case ... is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence” (Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649) which shows plaintiff guilty of a want of ordinary care which proximately contributed to the injury. The facts mainly relied on to show plaintiff’s want of ordinary care that contributed to this injury are that he approached this highway crossing by running the two wheels of his car outside of the traveled track and that he designed to do likewise after passing this crossing, that he took a course over the crossing which, had he proceeded straight forward, would have run the left front wheel into the ditch as well as the right wheel, and that he omitted to keep a lookout for the ditch or pit until he had approached it so closely that he could not turn his car so as to pass over the culvert in safety. It must be borne in mind that plaintiff was within the traveled portion of the highway at the time he first saw this pit, that [592]*592be was traveling at a lawful rate of speed, and tbat tbe evidence is uncontroverted tbat be was giving bis attention to and observing tbe road at tbe crossing and to tbe south of tbe crossing; tbat be testified tbat be did not observe tbe pit until be was witbin ten or twelve feet of it; tbat be tben did all be could to stop tbe car and all be could to steer it to tbe east to avoid tbe ditch, but failed by about a foot and one-balf. It appears tbat up to tbe time be saw tbe pit be traveled upon tbe proper part of tbe highway, tbat it was difficult for travelers on tbe road to see tbe pit on account of its obscurity in tbe light of tbe conditions surrounding it, and tbat it was so connected with tbe traveled tract as to render tbe road unsafe and dangerous for travel. Tbe defective condition of tbe highway has an important bearing on tbe other facts interpreting tbe significance of tbe plaintiffs action. See Cantwell v. Appleton, 71 Wis. 463, 37 N. W. 813. To aver tbat tbe fact tbat be did not see tbe ditch in time to avoid it shows affirmatively plaintiffs contributory negligence is in substance a contradiction of tbe conclusion above reached tbat tbe road was insufficient and defective, for if coming into contact with this ditch while passing over tbe highway in tbe ordinary way of using tbe traveled part thereof is negligence, then it was no failure of duty on tbe part of tbe city to omit putting up a guard, fence, or barrier to warn tbe public of tbe existence of this pit. We have shown above tbat this must, under the adjudications, be deemed a defect by reason of tbe fact tbat it rendered tbe road not reasonably safe. Wheeler v. Westport, 30 Wis. 392. We find nothing in tbe record as to plaintiffs conduct leading to tbe irresistible conclusion tbat be was guilty of a want of ordinary care. We consider tbat the facts and circumstances disclosing tbe manner in which be used tbe highway at tbe time in question do not affirmatively establish bis contributory negligence as matter of law, and tbat tbe trial court properly submitted this issue to tbe jury.
There is no error in tbe record.
By the Court. — Judgment affirmed.
[593]*593The following opinion was filed November 8, 1911: