Welsh v. Town of Argyle

62 N.W. 517, 89 Wis. 649, 1895 Wisc. LEXIS 197

Opinion

NewhaN, J.

It was obvious to Fisher that the road, though somewhat inconvenient for passage by reason of the ice over it, was yet safe. It was obvious also tbat tbe creek was in a state of freshet. He realized that. He knew also that, while the stream might be safe to ford in ordinary water, it might be dangerous in time of freshet. He saw the situation. Three courses were open to him: He could follow the road and be safe, though with some inconvenience; he could take the chance of the ford; he could turn back and cross the stream at some other point,, also at some inconvenience. He chose the only course which was attended with danger. He chanced the ford, and the chance turned against him. It was his own choice, and not an apparent necessity, which led him to deviate from the safe but inconvenient way. In such a case the town is not liable. Kelley v. Fond du Lac, 31 Wis. 179; Hawes v. Fox Lake, 33 Wis. 438; Goeltz v. Ashland, 75 Wis. 642. The evidence does not support the verdict. A new trial should have been granted.

By the Court.— The judgment is reversed, and the cause remanded for a new trial.