rule, however, does not apply to teams which become unmanageable or which run away by reason of a cause not the fault of the driver or of some unlawful defect or obstruction in the highway,471 but only where the condition of the team results from the negligence of the driver or because of its character as indicated above.472

(c) Rate of speed. It is not the duty of a public corporation to construct and maintain its highways for speeding purposes. If, therefore, a person drives or rides at an unreasonable rate of speed and an injury occurs through a defective condition of the way, ordinarily, he is not permitted to recover.473

§ 1056. Conduct continued; defective vehicles.

474

The exercise of ordinary care on the part of the traveler includes the use of vehicles, animals and their accoutrements in a reasonably sound and safe condition. If, through defects in these, an injury occurs, which would not otherwise have happened, by reason of a dangerous condition of the highway, the person so using the defective vehicle, animal or appliance, is guilty of contributory negligence.475

(a) Deviation from traveled way. The principle has been stated in preceding sections 476 that a public corporation, if the duty existed to maintain its highways in a reasonably safe condition, was obliged to maintain in this manner only that part of the legal highway required for use by public necessities. If a person deviate from the traveled way thus to be maintained in a reasonably safe condition and is injured by reason of defects or dangers existing outside the traveled way, he is guilty of such contributory negligence as to bar a recovery. In the case of a pedestrian

along the beaten track of a road. Johnson v. City of Superior, 103 Wis. 66, 78 N. W. 1100.

of

474 Farrar V. Inhabitants Greene, 32 Me. 574; Horrigan v. Inhabitants of Clarksburg, 150 Mass. 218, 22 N. E. 897, 5 L. R. A. 609; Brackenridge v. City of Fitchburg, 145 Mass. 160, 13 N. E. 457. Not guilty of contributory negligence as a matter of law in driving a blind horse on a dark night. Judd v. Town of Claremont, 66 N. H. 418, 23 Atl. 427; Clark v. Barrington, 41 N. H. 44; Chartiers Tp. v. Phillips, 122 Pa. 601, 16 Atl. 26; Hammond v. Town of Mukwa, 40 Wis. 35; Cairncross v. Village of Pewaukee, 86 Wis. 181, 56 N. W. 648.

475 Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697; Cunningham v. City of Thief River Falls, 84 Minn. 21; 86 N. W. 763; Winship v. Town of Enfield, 42 N. H. 197; Patchen v. Town of Walton, 17 App. Div. 158, 45 N. Y. Supp. 145; Jordan v. City

477

of New York, 44 App. Div. 149, 60 N. Y. Supp. 696; Gardner v. Wasco County, 37 Or. 392, 61 Pac. 834, 62 Pac. 753. Question for jury. Heisey v. Rapho Tp., 181 Pa. 561; Allen v. Town of Hancock, 16 Vt. 230. But see Wright v. Inhabitants of Templeton, 132 Mass. 49; Hodge V. Town of Bennington, 43 Vt. 450. 476 See §§ 991 and 1015, ante.

477 Johnson v. Sioux City, 114 Iowa, 137, 86 N. W. 212; Mulvane v. City of South Topeka, 45 Kan. 45; Sparhawk v. City of Salem, 83 Mass. (1 Allen) 30; Carey v. Inhabitants of Hubbardston, 172 Mass. 106, 51 N. E. 521; Harwood v. Inhabitants of Oakham, 152 Mass. 421, 25 N. E. 625; Bell v. Village of Wayne, 123 Mich. 386, 82 N. W. 215, 48 L. R. A. 644; City of Meridian v. Hyde (Miss.) 11 So. 108; Siegler v. Mellinger, 203 Pa. 256, 52 Atl. 175. It is presumptive negligence for one to walk along the side of a country road on a dark

479

traveling in the road way of a street, it might be said that the public corporation owes to him a duty less in degree that in respect to its sidewalks. While it is true a pedestrian may use any portion of the street,478 yet, certain parts are set aside for his exclusive use." Obstructions or defects in the sidewalk, the existence of which might be regarded as negligence in respect to pedestrians there, cannot be considered of this character, when in the roadway and in respect to the traffic for which that part of the highway is especially designated.480

(b) Travel in violation of law. The use of a highway either in respect to the time or the manner may be limited by law. Sunday travel in many states, except in cases of necessity, or for certain specified reasons, is prohibited. As a rule, the use of a highway at. a time thus prohibited by law is not regarded as a good defense in an action brought to recover for injuries received by reason of a defective condition or, to state the doctrine in another way, the use of a public highway at a prohibited time is not regarded ordinarily as contributory negligence.181 In respect to the manner of

night; the middle being the proper place. Chapman v. Cook, 10 R. I. 304; Biggs v. City of Huntington, 32 W. Va. 55, 9 S. E. 51; Stricker V. Town of Reedsburg, 101 Wis. 457, 77 N. W. 897; Seaver v. Town of Union, 113 Wis. 322, 89 N. W. 163. But see City of Austin v. Ritz, 72 Tex. 391, 9 S. W. 884. Question for the jury. City of Danville v. Robinson, 99 Va. 448, 39 S. E. 122, 55 L. R. A. 162; Boltz v. Town of Sullivan, 101 Wis. 608, 77 N. W. 870.

478 Bell v. Town of Clarion, 115 Iowa, 357, 88 N. W. 824; City of Olathe v. Mizee, 48 Kan. 435, 29 Pac. 754; Baker v. City of Grand Rapids, 111 Mich. 447, 69 N. W. 740; Ringelstein v. City of San Antonio (Tex. Civ. App.) 21 S. W. 634.

479 Bell v. Town of Clarion, 113 Iowa, 126, 84 N. W. 962. It is not negligence per se for a person to cross a street at a place other than

the regular crossing. But see City of Glasgow v. Gillenwaters, 113 Ky. 140, 67 S. W. 381.

480 Junction City v. Blades, 59 Kan. 774, 52 Pac. 444; City of Dallas v. Webb, 22 Tex. Civ. App. 48, 54 S. W. 398. Question for the jury. But see Magaha v. City of Hagerstown, 95 Md. 62, 51 Atl. 832; Neal v. Town of Marion, 129 N. C. 345, 40 S. E. 116.

481 Kansas City v. Orr, 62 Kan.. 61, 61 Pac. 397, 50 L. R. A. 783; Cratty v. City of Bangor, 57 Me. 423; Dutton v. Weare, 17 N. H. 34; Mohney v. Cook, 26 Pa. 342. But see Bosworth v. Inhabitants of Swansey, 51 Mass. (10 Metc.) 363; Connolly v. City of Boston, 117 Mass. 64; Lyons v. Desotelle, 124 Mass. 387. The rule in Maine has been changed by the Statutory laws of 1895, c. 129, p. 142, which provides that the right to recover shall! not be availed of one for an injury

use of the highway, especially rate of speed, driving at a prohibited rate which is generally an unreasonable one, is commonly considered as contributory negligence which will defeat a recovery, 42

§ 1057. Contributory negligence; a question for the jury.

Ordinarily, the question of contributory negligence is one for the jury to pass upon, upon all the evidence submitted to them and, in the greater number of cases, this doctrine will be found to obtain. It might be said, however, that this principle applies only where evidence is produced as to the legal effect of which the minds of ordinary and reasonable men will differ.484 Where the

evidence offered is of such a character that upon its consideration reasonable and ordinary men can come to but one conclusion, the question of contributory negligence is clearly then one not for the jury but for the court, and it becomes then a question of law.485

§ 1058. Burden of proof.

Where the question of contributory negligence is involved in a case as affecting the right of recovery by the plaintiff, the courts differ as to the party upon whom is thrown the burden of proof of establishing it. There are cases holding that not only must a plaintiff plead and prove the existence of a duty on the part of the defendant and a failure to perform that duty, but further must establish the fact that the plaintiff himself fully performed his duty and was free from contributory negligence.486 On the other hand by far the greater number of cases and authorities support the doctrine that contributory negligence is a defense and that the burden of proof is upon the defendant to plead according to established rules of procedure and prove contributory negligence on the part of the plaintiff that it may be successfully availed of as a defense and in order to bar a recovery.487 The reasons for the two doctrines are suggested in the cases cited and will be found considered at length in works on negligence.

485 City of Montgomery v. Wright, 72 Ala. 411; Wood v. City of Danbury, 72 Conn. 69, 43 Atl. 554; Dale v. Webster County, 76 Iowa, 370, 41 N. W. 1; Worcester County v. Ryckman, 91 Md. 36; 46 Atl. 317; Casey v. City of Fitchburg, 162 Mass. 321, 38 N. E. 499; Cloney v. City of Kalamazoo, 124 Mich. 655, 83 N. W. 618; Maanum v. City of Madison, 104 Wis. 272, 80 N. W. 591.

486 Trout v. City of Elkhart, 12 Ind. App. 343, 39 N. E. 1048; Falls Tp. v. Stewart, 3 Kan. App. 403, 42 Pac. 926. Where defendant pleads contributory negligence, burden of proof is shifted to it. Weston V. City of Troy, 139 N. Y. 281, 34 N. E. 780; City of Guthrie v. Thistle, 5 Okl. 517, 49 Pac. 1003; Stewart v.

City of Nashville, 96 Tenn. 50, 33 S. W. 613. Burden of proof is upon a blind person upon a street unattended to show that he exercised due care. See, also, Clark County Com'rs v. Brod, 3 Ind. App. 585, 29 N. E. 430.

487 Riest v. City of Goshen, 42 Ind. App. 339; Maultby v. City of Leavenworth, 28 Kan. 745; Independent Tp. v. Guldner, 7 Kan. App. 699, 51 Pac. 943. Under Gen. St. 1897, c. 42, § 48, if contributory negligence is pleaded by the defendant, the burden of proof is shifted from the plaintiff. Reading Tp. v. Telfer, 57 Kan. 798, 48 Pac. 134, construing Gen. St. 1889, par. 7134; May v. Inhabitants of Princeton, 52 Mass. (11 Metc.) 442; Snook v..