It would seem to .be unnecessary to make any remarks in justification of the ruling of the court in refusing to grant the motion for a nonsuit. It is claimed on the part of the town that the evidence showed contributory negligence which should preclude a recovery. The particular act of negligence relied on was the use of a wagon, the seats of which were fastened in the manner the testimony disclosed those in question were secured. When the accident happened, the plaintiffs were riding in what the witnesses describe as a light democratic wagon with two seats, the husband 'sitting on the front seat driving. The wife was on the back seat with a little boy, and had in her lap a small clock. While crossing an excavation which had been made in the highway by the Green Bay & Lake Pepin Railway Company for the purpose of laying its track, the hind-seat became unfastened or displaced, and the wife was thrown out of the wagon and was seriously injured. There was evidence which tended to show that this kind of wagon was in common use; that the seats rested upon elliptical springs, and were fastened, as they usually are, by means of iron bolts under the end, running *40down through rails attached to the side board. A witness, Witherill, was sworn on the part of the plaintiffs, who testified that he was a blacksmith by trade; that he had been engaged in ironing wagons for twenty-five or thirty years; and that he ironed the wagon in question. He stated that the seats were put in or fastened in the ordinary way of securing seats in wagons of that class. In view of such testimony, which was supported by other evidence, it is impossible to say as a matter of law, that the plaintiffs were not in the exercise of ordinary care and diligence in using the wagon in which they were riding with the seats fastened as described by the witnesses. It appears to us that this was essentially a question of fact for the jury to determine, and that the court was clearly right in refusing the nonsuit on the ground that the evidence showed contributory negligence.
The other ground relied on in the motion for a nonsuit, that there was no evidence which would justify or support a verdict of neglect on the part of the town authorities in not keeping the highway in proper repair, is equally untenable, but will be more fully considered in connection with certain instructions asked on the part of the defendant and refused.
Some instructions were asked on the part of the town, to the effect that if there was a defect in the highway occasioned by the construction of the Green Bay & Lake Pepin Railway across the street, under authority given in its charter, then the company was entitled to a reasonable time, in view of all the facts and circumstances, to lay its track and to place the highway in proper repair; that while the company was thus necessarily employed in such work, it had lawful control of that portion of the highway, and it was out of the power of the officers of the town to interfere with or to remedy any defect therein at that point; and that after the company had completed its track across the highway, the town officers would have a reasonable time to make the highway sufficient at the place of intersection. The circuit court, while refusing to *41give these instructions in the language asked, did nevertheless state to the jury in the general charge, that the town was not required to keep Eerry street entirely passable during the time of the construction of the railroad at the point of intersection; that if the town officers could not, before the accident, have made the crossing otherwise than it was, without inter-, fering with the railroad, then the town was not liable for injuries resulting in consequence of its being out of repair, for the reason that the company had the right to be there for the purpose of constructing its road, and while it was thus necessarily employed, the town had no right to interfere.
Upon this point we hold this to be the correct rule of law. The fact that the railroad company was constructing its road across the highway in pursuance of statutory authority, did not absolve the town from its primary duty and liability to the public to keep its highway in suitable repair; and if it became impracticable to keep the highway at the place in question passable while the railroad was being constructed across the same, then it was the duty of the town to take proper and reasonable precautions to guard the public against traveling upon the highway while it remained unsafe by reason of the operations of the railroad company in the construction of its track. We are now alone considering the obligation of the town, and the question whether it is or rs not liable to a person sustaining damage by reason of the insufficiency of one of its highways, occasioned by a railroad company constructing its road across it. And we are clear that the the town is primarily liable where it fails to keep such highway safe for public travel, or does not use proper precautions to warn travelers of the dangerous condition of the highway. This is the rule laid down in Willard v. Newbury, 22 Vt., 458; Batty v. Duxbury, 24 id., 155; and Phillips v. Veazie, 40 Me., 96; and it seems to us reasonable and just. The public have the right to look to the town for a reasonably safe highway, and where it becomes dangerous and out of repair, caused by a *42railroad company constructing its road across it, tiren it is tlie duty of tlie town to see that proper barriers or guards are kept up to warn travelers of its unsafe condition. Consequently, without dwelling more particularly upon the first four requests of the defendant, it will be seen from these remarks that they were incorrect, and that the charge of the court was more favorable to the town than the rule as above laid down.
As bearing upon the question of plaintiffs’ negligence, the court charged that if either of them had knowledge of. the actual condition of the crossing, then no notice or warning to them from the town or its officers was necessary; or if either had knowledge of the alleged defect in the highway, and if the defect was of such a character that men of ordinary prudence, having knowledge of it, would not, under ordinary circumstances, have attempted to pass at their own risk, the plaintiffs had not the right to do so, and could not recover, such facts being established. Also, that negligence of the plaintiff husband was in law the negligence of the wife, and was equally fatal to a recovery as the same degree of negligence on her part; but that “ slight negligence in either will not prevent a recovery.” The learned counsel for the town criticises the last expression as being equivalent to telling the jury that if either of the plaintiffs was wanting in the exercise of ordinary care and prudence, it would not prevent a recovery. But it is quite obvious from the whole charge that what the court meant was, that“ an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use” (Mr. Justice Paine in Dreher v. The Town of Fitchburg, 22 Wis., 675-677), would not prevent a recovery. That this is the true interpretation of this remark becomes more clear from the previous observations of the learned circuit judge, wherein he states that to entitle the plaintiffs to recover, it must not only appear that the injury resulted from a defect in the highway, but “that the plaintiffs were not guilty of negligence, or the want of *43ordinary care, in driving or passing over tbe said highway.” So, taking the whole charge together, the meaning is manifest, and there is no ground for saying it could have misled the jury as to the degree of diligence and care which the plaintiffs were bound to exercise. The circuit judge fully explained what would be deemed ordinary care and prudence on the part of the plaintiffs in driving over the highway where the accident occurred, adopting in the main the language of the authorities upon the subject.
Another expression in the charge was excepted to, wherein the court states that the town claimed that the accident was occasioned by reason of a defect in the wagon, in this, that the rear seat, the one occupied by Mrs. Hammond, was improperly and insecurely attached to the wagon bed. And the court said, as we understand this part of the charge, that the plaintiffs might recover, notwithstanding such defect may have in some degree contributed to the injury, unless they were guilty of negligence, or the want of ordinary care and prudence, in using a carriage with seats fastened in the manner the seats in their wagon were secured. We really can see no objection to such a charge. The court also told the jury, in substance, that if a wagon constructed like the one in question was notoriously unsafe, the plaintiffs would not be justified in rising it, though the mass of mankind might persist in using wagons of that kind.
The question whether the highway was out of repair was fairly submitted under proper instructions, and the finding of the jury upon the fact is conclusive. The jury were distinctly told that they must be satisfied that the real or essential cause of the injury was the alleged defect in the highway, and that the plaintiffs were not chargeable with any want of due care in driving over it. The counsel for the town argued that it should be shown that Mrs. Hanvmond had occasion, or was under some necessity of riding with her husband at the time she was injured. But such is not the law. We do not *44suppose a person is precluded from recovering damages for injuries sustained by a defect in a highway because he is traveling on the same for mere pleasure or recreation; and we will only add that we see no error in refusing to give the requests of the defendant as asked, but consider it unnecessary to specially comment on them. Some of them are substantially given in the general charge.
In consequence of being thrown from the wagon in which she was riding, Mrs. Hammond received a serious injury to her spine. It appears that she has suffered much pain, and is incapable of doing any work, or of attending to her household duties. The great probability is, that she is permanently disabled, and will be more or less of an invalid for life. The jury gave a verdict for $5,000 damages. In view of the nature and extent of the injury, we do not feel warranted in setting aside the verdict because excessive.
These remarks dispose of all the questions we deem material and essential to be noticed. It follows that the judgment of the circuit court must be affirmed.
By the Gourt. — -Judgment affirmed.