¶2This is a case in error from the circuit court of Dane county, wherein Dorn, the defendant in error, commenced an action against the plaintiff in error to recover damages resulting from a collison in the highway, and in which the plaintiff below obtained judgment.
¶3The case was tried at the June term. A. D. 1S58. None of the evidence is brought up in the record, and the only question we are called upon to consider, arises upon the following instruction asked by the defendant below,and refused to wit:
¶4•‘If the jury find that the defendant, at the time of the collision complained of, had driven his wagon to the right of the middle of the traveled part of the highway, and that his wagon at the time of such collision was to the right of the middle of the traveled part of said highway, then he is not liable for the damages resulting therefrom.”
¶5Perhaps if the evidence which was given upon the trial was before us, we might perceive how a refusal to give the broad charge requested in this instruction may have misled the jury. But in the absence of all such evidence, we cannot say that such refusal was necessarily erroneous. The instruction implies that if the defendant had driven his wagon to the right of the middle of the traveled part of the highway and his wagon was to the right at the time of collision, under no possible circumstances could he have been liable for any collision. Such is not the law. There are mutual and reciprocal duties incumbent upon those who travel the highways of the country, as there are upon those passing upon navigable streams. The law enacts a general rule by which the use of such highways shall be regulated, to avoid injuries and to prescribe duties and fix liabilities. But while the statute prescribes a general rule, it does not undertake to define what may be the duties and liabilities of travelers under all possible circumstances. A man may not remain stubbornly and *238doggedly upon the right of the traveled part of the highway, and wantonly produce a collision which a slight change of position would have avoided. For ought that appears in this case, such may have probably been the state of things here. The legal presumptions are that the evidence warranted the refusal of the court to grant the instruction. Error cannot be presumed. It must affirmatively appear. It is impossible for this court to say that the evidence did not show and could not have shown that the defendant below was clearly in the wrong ; that the collision was brought about by his own contrivance ; in other words, the refusal to instruct the jury may have been correct, and we are bound to presume that it was so. Brooks vs. Hart, 14 N. H., 307; 25 Maine Rep., 39; Earing vs. Lansing, 7 Wend., 185, and cases there cited.
¶6The judgment is affirmed with costs.