
    Griffin and wife vs. The Town of Willow.
    Highways: Evidence: Ne&ligence. (1) Opinions of witnesses as to sufficiency of highway. (2) “ Slight negligence.”
    
    1. In an action for injuries from a defective highway, witnesses cannot testify to their opinions as to the sufficiency of the highway.
    2. It is the settled law of this state, that “ slight negligence ” is not a slight want of ordinary care, but merely a want of extraordinary care; and such negligence on plaintiff’s part will not prevent a recovery for injuries caused by a defective highway.
    APPEAL from the Circuit Court for Richland County.
    Action by husband and wife for injuries to their persons, alleged to have been caused by a defective highway. The evidence of the plaintiffs tended to show that at the place where the accident occurred, a ditch and water-break ran diagonally across the road, and that, upon the plaintiff husband driving his wagon into this ditch, the axle-tree was broken, the wife was thrown- from, the wagon, the horses ran away, and both plaintiffs sustained personal injuries. Witnesses for the defendant were permitted, against objection, to answer the following questions: “Was it necessary that there should be a bar there [referring to the water-break] ? What kind of a road is it there? Is it possible to keep the road in a reasonably safe condition without a water-table [water-break] there? Was it such, taking into consideration the country and everything up there, as to be dangerous, taking proper care? At the time you saw it [four or five days after the accident], was there anj^. thing in the road which rendered it unsafe for a man to drive up or down the hill, using ordinary care?”
    The court refused to instruct the jury, as requested by the plaintiffs, that slight negligence on their part would not defeat a recovery, but modified the proposition by adding: “ but it must be so slight as not to contribute to the injury in any degree.” In the general charge, the court said: “ If one knows of a defect in a highway, and can avoid, by the exercise of reasonable and ordinary care and prudence, any injury in passing over it, it is his duty to do so. If he negligently and recklessly, under these circumstances, bring upon himself needless injury, the town is not responsible for it. * * If the jury find that the highway was not reasonably safe at the point in question, still, if Daniel Griffin (who was driving the team) knew of the existence of the ditch, and did not use a reasonable degree of care in driving over it, as ordinarily careful and prudent persons would do, in view of the circumstances then existing, and the accident resulted from such want of care, the plaintiffs cannot recover.”
    The defendant had a verdict; a new trial was denied; and plaintiffs appealed from a judgment on the verdict.
    The cause was submitted for the appellant on the brief of J. W. Lush.
    
    To the point that the court erred in permitting witnesses to give their opinions as to the safety of the road, the necessity for a water-break, etc., he cited Kelley v. Fond du Lac, 31 Wis., 185. To the point that it was error to refuse the instruction asked by the plaintiff, he cited Drelier v. Fitchburg,‘22 Wis., 675; Wa/rd v. M. da St. P. Railway Go., 29 id., 151; Houfe v. Fulton, id., 302; Hammond v. Mulcwa, 40 id., 35.
    For the respondent, a brief was filed by O. F. Blach as attorney, and Wm. E. Garter, of counsel, and the cause was argued orally by Mr. Garter.
    
    They examined the evidence at length to show that the verdict could not have been different if the court had excluded the opinion of the witnesses, and contended t'hat for that reason the judgment should not be reversed for the error. Green v. Gilbert, 21 Wis., 395; Kellogg v. Railway Go., 26 id., 223; Ketehum v. Zeilsdorff, id., 514; 29 id., 221; 17 id., 672; 15 id., 145. They also contended that, taking the whole charge together, the court must have been understood as saying that a slight want of ordinary care would defeat a recovery.
   Ryan, C. J.

The mere opinion of the respondent’s witnesses upon the safety of the highway was of course inadmissible. Kelley v. Fond du Lac, 31 Wis., 179. It must have been admitted by inadvertence. The learned counsel for the respondent is too good a lawyer to deny the error. He took the position, however, that the admission of the opinion of the witnesses is immaterial, because the great weight of direct evidence upon the condition of the highway must have led the jury to the same opinion. This court cannot say so. It was for the jury to determine the weight to he given to the testimony of the several witnesses; and there certainly was evidence upon the sufficiency of the highway to support a verdict either way. In such cases a jury may well rely upon the judgment of persons' of intelligence and standing. And it is dangerous in practice, as it is wrong in principle, to admit witnesses to testify to the very conclusions of fact which the jury is impaneled to find.

The learned judge of the court below refused, upon request of the appellants, to instruct the jury that slight negligence on the part of the plaintiffs would not defeat their right to recover. The proposition is undoubtedly correct: the well settled law of this court. Slight negligence is not slight want of ordinary care contributing to the injury, which would defeat an action for' negligence. “Slight, negligence is defined to he only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use.” And such want of extraordinary care, on the part of the person injured, will not defeat an action for negligence. Dreher v. Fitchburg, 22 Wis., 675; Ward v. Railway Co., 29 id., 144; Hammond v. Mukwa, 40 id., 35. In ordinary circumstances, persons traveling upon public highways are held to the exercise of ordinary care only.

The learned counsel for the respondent agrees to this; but claims that a fair construction of the general charge sufficiently gives the rule to the jury, to render immaterial the refusal of the learned judge to give the specific instruction ashed. As the judgment must he reversed upon the other point, it is unnecessary to examine the charge to see whether it sustains this view. Rut because the learned judge refused to give a direct and positive, statement of the rule, as asked, it has been thought proper, to avoid all mistake about it, to reiterate it here.

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