This action is founded upon tbe following provisions of tbe statutes:
“ If any damage shall happen to any person, bis team, carriage or other property, by reason of tbe insufficiency or want of repairs of any bridge or sluiceway or road, in any town in this state, tbe person sustaining such damages shall have a right to sue for and recover tbe same against such town, in any court having jurisdiction thereof.” Tay. Stats., 513, § 156; R. S., ch. 19, sec. 120.
*610“ Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damage in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. * * * Every such action shall be brought by and in the name of the personal representative of such deceased person.” Tay. Stats., 1574, §§ 12-and 13: R. S., ch. 185, secs. 12 and 13.
I. It is contended by the learned counsel for the defendant that the statute last quoted is not applicable to this case, and that the action cannot be maintained by the plaintiff. If rightly understood, the argument is, that a town cannot commit a tort,— that the statute does not base an action like this upon the neglect or default of the town or its officers,— that the law imposes upon the supervisors and the overseers of highways the duty of keeping the highways of the town in repair, and that, in the absence of proof that those officers have failed to apply the money and labor at their command for that purpose, properly and judiciously, to keep such highways in repair, it cannot justly be said that an injury caused by the insufficiency of a highway, was caused by the wrongful act, neglect or default of the town. It seems to us that this argument is unsound. With certain recognized qualifications, which do not figure in this case, the duty of a town to keep its highways in proper repair is absolute and unconditional. Ward v. The Town of Jefferson, 24 Wis., 342. If it fails to do so, and any of the injuries specified in the statute result, it is liable for such injuries. It cannot throw the responsibility upon its officers, although in certain cases it may have a remedy over against them; neither can it shield itself by the plea that it had no means at command with which to keep its highways in repair.
*611The gravamen of tbis action is tbe alleged wrongful neglect of tbe town of Elba to keep tbe highway in repair at tbe place where tbe deceased was killed. Had be, while in tbe exercise of proper care, been injured but not killed, in consequence of tbe insufficiency of tbe highway, there could be no doubt of bis right to maintain an action against tbe town for such injuries. But, be having been killed, tbe statute, in unmistakable terms, gives to bis personal representative a right of action for the same cause.
II. Tbe next position assumed by counsel for tbe defendant is, that tbe evidence shows conclusively that the deceased failed to exercise proper care and caution to avoid tbe accident— that be was guilty of negligence which contributed to bis death; and that tbe circuit court should, therefore, have nonsuited tbe plaintiff.
But we do not find in tbe testimony that clear and convincing proof of the existence of such contributory negligence which would have justified tbe court in taking the case from tbe jury. The presence or absence of such negligence involved tbe consideration and determination of many questions of fact, such as tbe condition of the highway, tbe darkness of tbe night, tbe speed at which tbe deceased was driving, the disposition of his team, and tbe condition of tbe deceased ■ — ■ whether be was intoxicated, and, if so, tbe extent of such intoxication. Upon some of these questions the testimony is conflicting; and it was peculiarly the province of tbe jury to determine them from tbe testimony. We find no controlling, undisputed facts in tbe case, which are sufficient, without regard to other and disputed questions of fact, to enable tbe court to say that tbe deceased was guilty of negligence which contributed to bis death. We think, therefore, that the circuit court did not err in submitting tbis question to the jury to be determined by them upon due consideration of all tbe testimony in tbe case.
This court has recently bad tbis subject under consideration in tbe cases of Houfe v. The Town of Fulton, 29 Wis., 296, and *612Wheeler v. The Town of Westport, 30 id., 392. The views expressed by tbe chief justice in Ms opinions in those cases are entirely applicable to tbis case. It is sufficient to refer to those opinions, without discussing the subject farther here. They contain a full, and it is believed a correct exposition of the law on the question under consideration, and are conclusive against the position sought to be maintained on behalf of the defendant.
III. The question of the sufficiency of the highway was also, and for like reasons, properly submitted to the jury. Indeed, it is not understood that this proposition is controverted by the defendant, and there is no necessity for any extended remarks on the subject.
IY. The charge of the court to the jury contains a very full, clear and accurate statement of the law of the case, ánd no exception thereto was taken. A single instruction was asked on behalf of the defendant and refused. The defendant duly excepted to such refusal. That instruction is as follows: “ If the jury find from the evidence that the deceased, John Burns, at the time of his death, was so intoxicated as to be incapable of carefully conducting himself and his team, then the plaintiff in this action cannot recover.” This seems to be an assertion of a self-evident proposition. The court was asked in effect to tell the jury that if the deceased was incapable of doing a certain thing, they could not find that he did do it. Was it necessary to make so palpable a truism the subject of a formal instruction ? It is not easy to perceive how the refusal to do so could possibly have prejudiced the defendant. Is there any good reason to believe, or even to suspect, that, because of such refusal, the jury may have found that the deceased exercised proper care to avoid the accident, and at the same time also found that he was entirely incapable of doing so? The jury must have found that the deceased was in the exercise of proper care when he was killed; and that negatives the hy-*613potbesis upon wbicb tbe proposed instruction is based, and renders it inapplicable to tbe case.
It is due to tbe learned circuit judge to state wbat be did say to tbe jury on tbe subject of tbe alleged intoxication of tbe deceased. His language was as follows:
“ Where tbe testimony establishes a clear case of injury arising from tbe negligence of tbe defendant, and nothing in tbe testimony tends to show that tbe decedent failed to exercise ordinary care and prudence, tbe jury would be warranted in finding that there was no want of proper care and prudence upon bis part; but if tbe fact is established to your satisfaction that be was intoxicated at tbe time of tbe injury, that in and of itself would throw the burden of proof upon tbe plaintiff to show that tbe decedent did exercise ordinary care and pru-dencei”
This was saying, in substance and effect, that if tbe deceased was intoxicated at tbe time of bis death, such fact, without regard to tbe degree of intoxication, was ‘prima facie evidence of want of ordinary care on bis part, wbicb tbe plaintiff must rebut by other proofs, or she could not recover. As a matter of course, bad tbe jury found that be was intoxicated to that degree that he was incapable of exercising ordinary care to avoid tbe injury, they would not have found that tbe presumption of negligence on bis part arising from bis condition bad been successfully rebutted, but would have returned a verdict for tbe defendant.
It seems to us that there is nothing in tbe charge of tbe court, and nothing omitted therefrom, relating to the alleged intoxication of tbe deceased, of wbicb tbe defendant can justly complain.
By the Court.— Tbe judgment of tbe circuit court must be affirmed.
A motion for a rehearing was denied at tbe June term, 1873.