¶1delivered the opinion of the court.
¶2Appellant contends that the dimensions of the ditch dug by Nelson were such, it being a deepening of that made by the highway commissioners, that the evidence shows the wagon did not slip or slide into the deepening made by appellee. The evidence is to the effect that by the accident the buggy was completely overturned, all four wheels being in the air. Appellant urges that the relative dimensions of the buggy and ditch dug by him were, as shown by the evidence, such that if any portion of the buggy had slid or slipped into the said ditch it could not have been left completely overturned with the wheels in the air.
¶3We are not prepared, as a matter of physics or natural law, to accede to this claim. In what position a light, one-horse spring wagon, sliding sidewise, or side and corner-wise, so that one wheel of it entered such a ditch as was dug by appellant, would come to rest after one man had jumped and two others been thrown or jumped therefrom, and the horse attached thereto had fallen into the ditch with his feet in the air, is a thing no one can tell.
¶4If one or more of the right-hand wheels of the buggy had slid so as to be within the ditch dug by appellant; that these wheels might not, by all the forces operating upon the vehicle, have been moved up so as to be out of such ditch with the carriage completely upset and all four wheels in the air, the- evidence did not show, and so far as we are aware no law of physics proves. The special finding of the jury is conclusive as to the cause of the accident. This court can not, upon the record here presented, say that it did not happen in the manner described in the declaration.
¶5Appellant had a right upon this road to do that necessary for the drainage of his lands, provided he did not interfere with the use of the highway, rendering it less safe, useful, convenient or excellent as a public thoroughfare. Postal Telegraph Co. v. Eaton, 170 Ill. 513; Elliot on Roads and Streets, 119.
¶6If the ditch dug by appellant was an, obstruction of this road,then his acts were unlawful. Sec. 71, Chap. 121, R. S.; Town of Canoe Creek v. McEniry, 23 Ill. App. 227; Boyd v. The Town of Farm Ridge, 103 Ill. 408.
¶7Whether it was so was a question of fact for the jury.
¶8An obstruction by a private person of a public highway is, at common law, not only unlawful but a nuisance. Elliot on Roads and Streets, 476. It is also unlawful because forbidden by statute.
¶9The court properly refused to require the jury to answer specially whether the right hand wheel of plaintiff’s wagon entered the ditch excavated by Relson.
¶10Questions as to merely evidential facts should not be submitted to a jury. Treffert v. Ohio & M. R. R. Co., 36 Ill. App. 93.
¶11Bor was the court required to instruct the jury, as asked, that certain facts must be clearly shown by a preponderance of the evidence, or that the plaintiff exercised that degree of care which a prudent man would ordinarily exercise “ in driving along a country road in the dark.” Crabtree v. Reed, 50 Ill. 206.
¶12The plaintiff’s leg was broken in three places; the judgment is not, under the evidence, excessive.
¶13The judgment of the Superior Court is affirmed.