The plaintiff was severely injured. lie obtained a verdict and judgment in his favor. The evidence in support of it must, therefore, receive the most favorable construction it will legitimately bear, including all reasonable inferences from it. ■ Giving to it such construction, can we say there was evidence sufficient to sustain a verdict that the street at the time and place in question was defective or out of repair? There seems to be no material conflict in the evidence upon this point. It is true, Col. Botkin testifies, in effect, that he took a plank not over twelve feet long and as straight as he could find, and laid it on the top of this crosswalk and then across the gutter onto the street on the opposite side, where he judged the wagon went,— a little below the center — east of the center of the street, — four or five feet below the center; and that from the deepest place to the bottom of the plank where the lower wheel went it was eleven inches, and that from the bottom of the plank to the bottom of the depression where the upper wheel went it was seven and a half inches.- That does not undertake to give the depression in the gutter itself and nothing more, and hence is not necessarily in conflict with the actual measurements in detail made by the surveyor. Such measurements showed the actual depressions in the gutter, which was but eight feet wide. The only defect complained of, after all, is the depression of from five to nine inches deep near the center of this gutter eight feet wide, constructed, as stated, with the crosswalk near and parallel with it. There is no complaint that it was not made with proper material, nor that the work was not well done. Of course, so many streets coming together, where the ground is so descending, necessarily required drains of some kind to carry away the surface water accumulating thereon in certain seasons of the year; not to have constructed any would have been a clear case of neglect, which might at times have rendered travel unsafe. The evidence *380fails to indicate any safer method of drainage, and we are not aware of any.
These different streets coming together in that way necessarily had to conform more or less to each other to render passage ordinarily safe. King street and its continuation, Wilson street, being the main traveled streets to the depot, and out of the city in that direction, necessarily had the preference in the grade, if any was to be made, especially as Butler street was a mere side street, running along the side of the descent. The grade of the streets, the gutter, and the cross-walk seem to have been established with reference to each other, and constructed at considerable cost. Such grade had not been materially changed since it was made. It can hardly be claimed that it had got out of repair after construction. To hold that its condition, as constructed, tended to prove the existence of a defect, is to hold that there was something about it from which the jury were authorized to infer a want of skill, either in establishing the grade, or in the plan or method of construction. If there was anything in the case which warranted such an inference, then, of course, the case was properly left to the jury. But my brethren are clearly of the opinion that there is not, and I am inclined to acquiesce in their judgment. Negligence must be proved by the plaintiff, and is not to be inferred in the absence of evidence. See opinion of Mr. Justice Orton in Sorenson v. Menasha Paper Co., ante, p. 338.
Certainly it would be difficult to justify a recovery upon any other theory than that the jury are in all cases the exclusive judges as to whether the grade established, and the construction of streets, cross-walks, and gutters in accordance therewith, are proper and suitable for travel. Ordinarily, in such cases, there is enough to carry the case to a jury; for even though the physical facts may not be disputed, yet there is usually something in the case from which conflicting infer-*381enees may fairly be drawn, requiring the intervention of a jury. But we are to remember that, as a condition precedent to any recovery, there nnist be what may fairly be regarded as a defect. It may be that the acute angle formed by the cross-walk'and gutter with Butler street, together with the depression in the gutter, furnishes a mere shadow of testimony from which a defect might' be inferred by one not taking into account the natural condition of the surface of the ground, and the necessary connection of Butler, King, and Wilson streets; but when these.things are taken into account, and the further fact that the cross-walk and gutter were put there in the condition stated in order to bring these several streets, and especially the two having the much greater travel, into good condition, in pursuance of an established grade, and thus anticipating and avoiding defects which might otherwise have been especially inconvenient, if not dangerous, in certain seasons of the year, the inference of any defect seems to disappear.
The question was raised upon the argument as to how this load of hay could have been tipped over as it was, assuming that the plaintiff was not guilty of contributory negligénce, for the evidence fails to show; but no one attempted even to conjecture how it could have happened.
We must, therefore, hold that where, on a declivity in a city, several streets intersect each other, and are paved and worked in accordance with an established grade, which does not appear and is not shown by evidence to be defective, the mere fact that a cross-walk and stone gutter eight- feet wide parallel with it, otherwise properly constructed and not out of repair, crosses one of the streets (a side street) upon an angle a little less than a right angle, and the middle of the gutter for a space of about thirty feet in the middle of such street only has a depression of from five to six inches, and outside of that space only a depression of from eight to nine *382inches, the same does not constitute such a defect as to render such city liable.
Besides, we think the court should have given the following instruction requested by the defendant: “ It is evident that in a place like the city of Madison it is quite impracticable to bring all streets and walks to a dead level, and therefore such a slight ascent as one inch or so to a foot in a cross-walk or gutter crossing a street, will, of necessity, sometimes have to exist; and it would be establishing a rule quite too strict to say that such an ascent in the cross-walk or gutter constitutes a defect.” But it is unnecessary to continue the discussion further.
By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.