(dissenting in part). Plaintiff, widow and ad-ministratrix of the estate of George Belstner, brings this action against the defendant for damages accruing to her on account of the death of her husband, caused, it is claimed, by *561a defective Jiighway wbicb the defendant negligently allowed to remain in that condition. Evidence tends to show that at a point where the highway passed through a rock cut some quarrying was done which left part of the roadbed about three feet lower than the, remainder, and an almost perpendicular wall of rock about three feet in height and extending diagonally across the roadbed marked the junction of the higher and lower levels of the road. To make this available for travel the lower portion was so filled up with earth as to make a slanting ascent to the higher level. The drainage from this clay filling was imperfect or nonexistent, so that in wet weather it became soft mud and gave way under the wheels of passing vehicles, while the rock of course remained, thus causing a severe jolt to vehicles passing over. Apprehending danger from some recent experiences with other travelers, a few days before the accident a neighboring farmer, a former road overseer of the defendant, hauled in a load of soft earth and dumped it on top of the former fill and close to the rock ledge so as to break the force of contact with the perpendicular rock, and with this last fill the crossing ledge projected about two inches over the soft clay.
There is ample proof of notice to the town and of such long-continued insufficiency of the highway in the particulars aforesaid that the town, in the exercise of ordinary care, should have discovered and remedied the defect. There is also evidence from which the jury was authorized to find the existence of an actionable defect or insufficiency under the statute. Sec. 1339, Stats. 1913.
It is argued that the court should have directed the jury to return a verdict for defendant because there is no evidence tending to show that the death of George was caused by the defect or insufficiency of the highway. On Sunday afternoon, July 21st, deceased was riding in a wagon driven by another on the highway, and when this point was reached the wagon gave a severe jolt and threw him out on the road. He *562landed on bis bead with force, indicated by tbe crushing and tearing of bis bat and by bis exclamation to tbe effect that be tbougbt bis neck was broken, be bad beard it crack. He complained of pain in bis neck on tbe way borne from tbe place of accident, but on Monday morning went to work at bis usual occupation of machine operator in a manufactory. There is no evidence of further complaint or suffering until Tuesday noon, when be informed tbe foreman of illness and that unless be felt better be would not return to work tbe next day. He did, however, return to work on Wednesday and worked something more than half a day, then went borne sick. Hr. Uennett came to see him on Thursday and found him suffering from a difficulty which tbe doctor termed “inflammation of tbe brain and cord, meningitis.” He gave tbe doctor a narrative to aid tbe latter in diagnosis. He died tbe next day. This doctor testified that tbe conditions be found existing could have been brought about by tbe fall described. See cases cited in Bucher v. Wis. Cent. R. Co. 139 Wis. 597, at pp. 610, 611 (120 N. W. 518), and also Otto v. M. N. R. Co. 148 Wis. 54, 60, 134 N. W. 157. Dr. Smith in answer to an hypothetical question testified in substance that in bis opinion the condition termed by Dr. Bennett meningitis was caused by tbe fall and that be would have no doubt that this was tbe cause. It is said that meningitis is a germ or bacterial disease, that it attacks strong and apparently well persons without any known cause, and is quite mysterious in its origin, all of which may be conceded. But the term is also apparently used to indicate any inflammation of the meninges or membrane which incloses tbe spinal cord and brain. There are so many unsolved and doubtful problems relating to tbe bacterial origin of diseases and tbe habitat of tbe bacteria prior to tbe advent of tbe disease that it would not be either modest or wise to pronounce definitely upon such questions as legal questions. Absolute certainty of tbe cause of death usually is unattainable, and tbe best that can be expected *563is a bigb degree of probability; Up to the time of the accident the deceased had been in good health. The fall was a severe one, death followed within five days, and from the time of the fall until death symptomatic observation indicated an injury to the vertebrae of the neck. This, added to the opinions of the qualified physicians, which are not incredible or extravagant, makes out a case from which the jury might find the death was caused by the defect in the highway.
The defendant requested an instruction to the effect that the plaintiff must prove by a preponderance of the evidence that the fall from the wagon was the cause of the death. This the court refused, but a question of the special verdict asked: “Did George Belstner’s death result from an injury received by him in falling out of a wagon and striking upon his head in a public highway, at the time and place alleged-in the complaint?” He instructed the jury that: “The burden of proof as to each of said questions is upon the affirmative of the question, and you should, therefore, not answer either question in the affirmative, unless you are satisfied from a preponderance of the evidence, to a reasonable certainty, that they should be so answered.” The requested instruction was therefore sufficiently covered by the general charge and no error resulted from its refusal.
It is contended that the damages of $5,000' are excessive. There was evidence that the deceased was married, childless, aged forty-nine years, in good health, faithful and industrious at his work, and his last employer testified that during two and a half years’ employment.he had not lost a day from sickness. The only evidence of his earning capacity is that he operated some sort of a machine in a factory and “earned good wages.” This omission to prove what he- earned and what his habits of thrift were and what property, if any, he had accumulated was quite a serious oversight. There is evidence that deceased had been married twenty years and that his widow has no property and that he was her sole *564means of support, but there is nothing to show how old she is. There is nothing upon which to base a recovery for the loss of probable future accumulations of property; rather the contrary is suggested. We do not know what is considered “good wages” for an operator upon this undescribed machine. It might perhaps he assumed that he received at least the wages of an ordinary laborer, and we might take judicial notice that these are from $1.50 to $2.50 per day, depending upon season and locality. But we do not know- the wages in this locality. We might perhaps also take judicial notice of his expectancy of life according to the tables mentioned in sec. 3871m, Stats. 1913, relating to dower. But we do not know the widow’s age, we do not know what number of days in a year he was accustomed to work, nor what proportion of his wages went for his personal expenses. In this evidence there can he found no basis upon which either the jury or this court can properly estimate plaintiff’s damages. Sweet v. C. & N. W. R. Co. 157 Wis. 400, 147 N. W. 1054, and authorities cited. This opinion last cited received the unanimous approval of this court, as I understand it. If such evidence sustains a recovery for any sum it sustains a five thousand dollar recovery just as well as it sustains a three thousand dollar recovery. The notion that indefinite evidence pointing to no ascertainable amount will sustain a verdict for $3,000 but not one for $5,000, and that evidence insufficient to support a verdict of the jury because of indefiniteness is nevertheless sufficient to support a verdict of this court on the question of damages, seems to me quite illogical. The plaintiff has a constitutional right to have these damages fixed by a jury. Const, art. I, sec. 5. If the evidence pointed to a somewhat definite amount less than that fixed by the jury, then perhaps this court could act by fixing what it considered the maximum amount which a fair jury would ordinarily give on this evidence, and give the plaintiff the option to accept that amount or submit to a new trial. *565But tbat is not tbe case bere. I believe tbe constitution is-binding, not only upon tbe legislature, but also upon tbis-court, and if “right of trial by jury shall remain inviolate” tbe plaintiff has a right to have her damages fixed by jury and not by tbis court, except in such cases where tbe verdict of the-jury is impeached by the evidence given in tbe case, and in tbe latter case tbe amount of recovery approved by tbis court, must rest upon evidence, not upon mere conjecture. When in tbe future there shall come to tbis court tbe verdict of a jury in a like case for tbe amount fixed by tbis court and resting upon like evidence or lack of evidence, it should be-affirmed if tbe rule bere established is to prevail.