Volume 147 — Wisconsin Reports

Ross, Circuit Judge. Tbis is an action for damages for personal injuries received by tbe plaintiff caused by a fall witb a scaffold wbicb was being used in tbe construction of a salt bouse for tbe defendant.

Ross, Circuit Judge. This is an appeal from a judgment for damages in an action by plaintiff as administrator for the death’of his son, alleged to have been caused by the negligence of the defendant.

Tbe defendant is a corporation doing business in tbe city of Superior and is engaged in tbe manufacturing of lime and other building materials, and in tbe conduct of its business uses and maintains a dock on tbe Bay of Superior in said city, at wbieb dock steamboats are moored and cargoes of stone unloaded therefrom.

Tbe street on wbicb fronted or abutted several lots in tbe city of Superior, Wisconsin, owned by respondent, prior to 1910, was paved, or paved and repaved, special assessments on account thereof being made against each sucb lot and in due course paid. In sucb year tbe street was improved by a permanent pavement having a concrete foundation, tbe lots being assessed as before, without recognizing any right of exemption because of pavement assessments previously paid.

<p> Appeal: Exceptions to rulings at trial, when to be taken: Extending time: Master and servant: Injury to servant: Contributory negligence: Knowledge of incompetency of fellow-servant: Instructions to jury: Harmless errors: Damages. </p> <p>1. Exception to tiie refusal of the court to submit particular questions in a special verdict must be taken at the time of the trial.</p> <p>2. Sec. 2831, Stats. (1898), has no application to an omission to take timely exception to a ruling of the court during trial. Henrizi v. Kehr, 90 Wis. 344, and Dickinson v. Smith, 139 Wis. 1, distinguished.</p> <p>3. In an action for injury to a servant, an instruction making his-contributory negligence depend upon what “he then knew” as to the incompetency of a fellow-servant, omitting the phrase, “or by the exercise of ordinary care ought to have known,” is held not prejudicially erroneous where the employment was simple and plaintiff probably knew or did not know of such incompetency, depending largely upon his opportunity or need for observation, and the jury were required to take this fact into consideration.</p> <p>'4, Findings that the fellow-servant was incompetent and that plaintiff did not know of such incompetency, are held to be sustained by the evidence.</p> <p>5. An award of $5,000 to a man fifty-eight years of age and earning $1.75 per day, for permanent injuries to his left leg and right foot, though considered large, is sustained. Marshall, J., dissents.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: FbaNK A. Ross, Circuit Judge.</p> <p>This is an appeal from a judgment in favor of the plaintiff and against the defendant for $3,000 damages and costs. The plaintiff seeks to recover for an injury sustained on the 30th day of July, 1910, while in the employ of the defendant on a tug owned and operated by the defendant on Lake Superior and in the Bay of Superior. The plaintiff’s claim is based upon the failure of the defendant to furnish a proper head rope or tie line for use on said tug with which to make the tug fast to scows or other vessels or docks; that said tie line was too short for the purpose, and in consequence of it being too short plaintiff was injured while engaged in making a line fast to the pawl post on the tug, the other end of said line'being at that time fastened to a scow in tow by the tug. The jury returned the following verdict:</p> <p>“(1) Did plaintiff suffer injury to his person while in defendant’s employ on July 30th? A. (by the court). Yes.</p> <p>“(2) Was defendant guilty of negligence in failing to furnish for plaintiffs use on the tug a head line of sufficient length to be reasonably safe for the use of its employees ? A. Yes.</p> <p>“(3) If you answer question 2 ‘Yes,’ was such negligence the proximate cause of plaintiffs injuries? A. Yes.</p> <p>“(4) Was plaintiff guilty of any negligence in the premises that contributed proximately to produce his injuries ? A. No.</p> <p>“(5) Had the plaintiff, prior to the time he was injured, assumed the risks incident to the use of the short head line ? A. No.</p> <p>“(6) What amount of money will Compensate plaintiff for his injuries ? A. $3,000.”</p> <p>Defendant moved for judgment notwithstanding the verdict, to correct the verdict, and for judgment on the verdict as corrected, which motions were denied and due exceptions taken. Judgment was entered in favor of the plaintiff upon the verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: Frahe A. Ross, Circuit Judge.</p>

<p> Pleading: Answer: General denial: Right of plaintiff to sue: Waiver of objection. </p> <p>In an action by an individual upon a contract alleged to have been made with him, defendant may under a general denial show that the contract was made with a corporation and not with plaintiff individually. Such defense being one which goes to the cause of action itself and if true shows that plaintiff is an entire stranger thereto, the rule is not applicable which requires the objection that plaintiff is not the real party in interest to be taken specifically by answer or demurrer. Robbins v. Deverill, 20 Wis. 142, distinguished.</p>

<p>Appeal from a judgment of the circuit court for Barron! county: Epank A. Ross, Circuit Judge.</p> <p>Action for trespass. At the beginning of the trial the following stipulation was entered into:</p> <p>“It is stipulated that the defendant Sever Hustad, at the-time alleged in the complaint, cut and removed the fence in question, and entered upon a strip of land inclosed thereby and about two rods in width, and that the defendant claims the said fence and strip of land were a part of the northwest-quarter of the northeast quarter of section 13, town 35, range-13, and the plaintiff claims that the same was a part of the-lands described in the complaint, that is the southeast quarter of the southeast quarter of section 12, township 35, range 13; that the respective claims of the parties depend solely upon the true location of the southeast corner of seetion 12, town 35 north, of range 13, and if the corner is as claimed by the plaintiff and his surveyors, then the fence and’ the strip of land was a part of the southeast quarter of said section 12, town 35, range 13 west. It is understood that: the plaintiff claims said corner to be at a point about five rods south and eight rods west of the place defendant claims true comer to be. It is further stipulated that the plaintiff was at all times mentioned in the complaint .and is now the owner of the east half of the southeast quarter of section 12, town 35 north, range 13, and that the defendant was at all times mentioned in the complaint and is now the owner of the west half of the northeast quarter of section 13, township 35, range 13.”</p> <p>It was further stipulated that, if plaintiff was entitled to recover, his damages were $2.50.</p> <p>The jury found that the southeast corner of section 12 was at the point claimed by plaintiff, and from a judgment entered in his favor the defendant appealed.</p>

<p>Trusts and trustees: Bale by trustee to himself: Remedies of cestui que trust: Accounting for profits: Laches: Harmless error.</p> <p>1. A sale of trust property by tbe trustee of an express trust to bimself is voidable at tbe election of tbe cestui que trust; and neither good faith nor tbe payment of ample consideration will support tbe sale in sucb a case where tbe trustee acts both for bimself and for bis cestui que trust.</p> <p>2. Tbe cestui que trust in such case may elect to disaffirm tbe sale and recover tbe property sold, or be may affirm tbe sale, bold tbe trustee to bis purchase, and require him to account for bis profits made in tbe transaction.</p> <p>3. Where by see. 3918, Stats. (1898), a cestui que trust in sucb a case is barred from recovering tbe land sold (more than five years having elapsed since tbe sale thereof), be may still elect to affirm tbe sale and require tbe trustee to account for profits.</p> <p>4. As between the trustee of an express trust and his cestui que trust the right to such an accounting will not he barred by laches of the latter unless there has been an unequivocal denial or repudiation of the trust by the trustee which was known or ought to have been known to him. -</p> <p>5. The cestui que trust is entitled to an accounting only for profits actually made by the trustee, and where no profits were actually made a judgment denying the right to an accounting, though legally erroneous, will not be reversed.</p>

- Appeal from a judgment of tbe county court of Jefferson county: Charles B. Eogers, Judge. This is an action to recover tbe selling price of a quantity of bolts wbicb were sold and delivered to tbe defendant under tbe terms of a contract wbicb is evidenced by letters wbicb passed between tbe parties. Tbe court made findings of facts as follows: “1.

Tbis action was brought to recover damages for personal injuries alleged to bave been sustained by plaintiff in consequence of a sbot fired by tbe defendant while plaintiff and others were at a charivari on tbe premises of tbe defendant on the 23d day of June, 1910.

<p> Evidence: Adulteration of millo: Civil action: Plea of guilty in criminal case: Analyses and tests not conclusive: Witnesses: Competency: Agency of wife for husband: Opinions. </p> <p>1. The fact that a person, has pleaded guilty in a criminal prosecution for watering milk does not preclude him, in a civil action for damages, from denying that he watered it.</p> <p>2. Since chemical analyses and other scientific tests are subject to errors and inadvertences and the narrative thereof must always rest upon the veracity of the operators, they are not conclusive upon a jury.</p> <p>3. In an action for damages for the watering of milk, defendant’s wife, who milked some of the cows and handled some of the milK on the occasion in question for her husband, he being the owner and having delivered the milk, was a competent witness, in his behalf.</p> <p>4. A dairy farmer owning eighty to one hundred milk cows was competent to give an opinion as to the effect of fodder upon the quality of milk.</p>

The complaint in this action alleges that on or about January 15, 1903, the Sisters of Mary, a corporation duly organized under the laws of the state of Wisconsin, circulated among the citizens of Beloit a subscription paper for the purpose of obtaining subscriptions to a fund to purchase a hospital site and building and to maintain and operate the same as a public hospital in said city, and that at the time said subscriptions were made and the subscribers signed said…

<p> Interurban railways: Injury to passenger: Defective way to street: Platform and steps built by others: Duty of company: Delegar tion: "When passenger ceases to be such. </p> <p>1. An interurban railway company is liable for injuries to a passenger caused by the defective condition of steps leading from a platform upon its right of way to the street, although such platform and steps were built and had been from time to time repaired by other persons, where they were necessary to enable passengers to get to and from the street and were so used with the knowledge and acquiescence of the company.</p> <p>2. Such a company is bound to keep in a reasonably safe condition all ways of ingress or egress which it maintains or suffers to he maintained to and from its station; and if a passenger using-such a way is injured without negligence on his part it is no defense that another and safe way might have been used.</p> <p>3. Such duty of the company cannot be delegated to others either specifically or by permitting them to make repairs.</p> <p>4. A passenger does not cease to bear that relation to the company when he has alighted safely upon such a platform, being still upon the company’s right of way and entitled to a reasonably safe passage from it to the traveled portion of the street.</p>

<p>Appeal from a judgment of tlie circuit court for Rock county: Geoege Geimm, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for La Eayette county: Geoege OlembNT’soN, Circuit Judge.</p> <p>One Elijah Swank in his lifetime owned the forty-acre tract in controversy in this action. He died intestate in 1861, leaving a widow and several brothers and sisters, but no children. The land involved was used and occupied as a homestead during the life of Swank, and his widow occupied it as a homestead until her remarriage in 1863 to one Dobbs, and thereafter she and her second husband continued to occupy it as their home until his death in 1897, and thereafter she continued to occupy it until her death in 1907. She left no will. There were no children born of the second marriage, but Mrs. Dobbs had several brothers and sisters. The plaintiffs in this action are her lawful heirs. The defendants in the action are the lawful heirs of Elijah Swank and of George W. Dobbs, the second husband of Swank’s widow. This action was brought by the heirs of Mrs. Dobbs to establish title under ch. 492, Laws of 1909 (sec. 3186m, Stats.). Judgment was rendered in favor of the plaintiffs, adjudging them to be the owners of the farm. The heirs of George W. Dobbs did not appear or answer and did not disclaim title. A part only of the heirs of Elijah Swank appeared and answered. This appeal is prosecuted by those heirs at law of Elijah Swank who have appeared and answered in the action.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county: Geoege Gbimm, Circuit Judge.</p> <p>Proceedings to determine compensation for taking plaintiff’s real estate for interurban electric railway purposes, under tbe power of eminent domain.</p> <p>Commissioners, in due course, awarded plaintiff $/T50. Tbe company appealed and, in due course, tbe litigation was closed by a verdict fixing tbe amount at $1,320, and rendition of judgment tberefor with costs. Questions were saved for review discussed in tbe opinion.</p> <p>Tbe following appeared by tbe evidence: Under a franchise permitting use of tbe premises for electric street railway purposes, tbe tracks, substantially as contemplated later in tbe more extensive use leading to tbis litigation, were laid in 1902 and used up to tbe latter time under a fifty-year franchise. Tbe service required cars to pass frequently. In July, 1908, a franchise was granted to use tbe tracks for interurban as well as urban purposes. It was contemplated that tbe cars doing interurban business would also do urban business while operated inside tbe city limits. Tbe former required somewhat larger cars than tbe latter. Tbe later franchise permitted use of cars for carrying freight and sucb are used to some extent. The substance of the evidence in support of the verdict is this:</p> <p>Mr. Pember: I think the interurban railway damages plaintiff’s property $1,500 to $2,000. It interferes with the use of the street a good deal by horses. It interferes particularly in winter.</p> <p>Mr. Carter: I think the railroad, with its two tracks and cars running as they do, damages the property twenty-five per cent: In winter they shovel snow on the side and block up the road. The company forces the snow clear up on the sidewalk. I do not know of that having occurred except last winter. I do not consider a street railway on any street an inconvenience. The tracks in question are an inconvenience because there are so many of them. The property is right on the street and you cannot get to it conveniently. Plaintiff’s business has fallen off half from what it used to be.</p> <p>Mr. Conrad: I think the presence of the tracks and accessories and use thereof affects the value of the property. A street railway or interurban railway might be beneficial or otherwise to property. Sometimes one and sometimes the other, according to circumstances. The more people you bring to some kinds of property the better.</p> <p>Mr. Kelley: I think the location of those tracks and running of cars frequently and tracks around both sides of that place, double- tracks on one side, affect the property twenty to twenty-five per cent. I think plaintiff’s property worth $10,000. It is the presence of the interurban tracks on two sides of the property which reduces the value of the property in my estimation twenty-five per cent.</p> <p>Mr. Eller: In my judgment the railway damaged the property twenty-five per cent. The cars frighten horses. I cannot say that of the interurban more than ordinary street railway cars. I do not think the interurban railway injures my property any more than a street railway on the street in the same way.</p> <p>Mr. Schmidley: Tbe laying of tracks and accessories and running of cars injures the value of the property twenty to twenty-five per cent. The railway cuts up the street. I would dislike to have it go by my place. A man is afraid to hitch a horse by plaintiff’s property. The farmers are afraid to drive their horses along there. The railway injures the property as a place of business.</p> <p>Mr. Austin: The presence of the interurban injures plaintiff’s hay-scale business. I have a number of farms and have withdrawn my patronage, partly, from plaintiff on account of the railroad.</p> <p>Mr. Scott: I have withdrawn my patronage, somewhat, from plaintiff since the interurban was established. The railroad damages the property. Oars frighten horses. Mur-dochs business has fallen off half. If the railway was not there he would get more business.</p> <p>Mr. Owen: The railway causes more or less of a jam by plaintiff’s property. It is noisy there. When you want to telephone you cannot hear. Horses get frightened.</p> <p>Mr. Murdoch, the plaintiff: The railway was put in about six years ago. Before that I did business of weighing with my scales to the amount of twenty-five to thirty loads a day. As soon as the railway was put in there was a change. I have carried on grain business on the property for many years. The running of cars in front of my property has injured my business. I will not say the railway has not been in eight years. I do not know of any one who has ceased to patronize my scales on account of the railroad, but before the track was put down I used to do a good share of the weighing.</p> <p>There was other evidence to the effect that plaintiff used the property for a home, for renting rooms in a structure thereon, for maintaining bay-scale business, and for a hay and chicken barn. He testified that the railroad did not interfere with his rooming business, but greatly injured his weighing business. There was much evidence tending to show that the interurban business did not change the situation materially from what it would be with the urban business only.</p> <p>The court instructed the jury that the limit of plaintiffs right to recover was the difference between the fair market value of his property before being used for interurban railway purposes, and the value under the conditions created by such use. The jury were admonished that if it were not for interurban business “defendant would still have the right, without compensation to plaintiff, to maintain tracks, poles, and wires thereon for operating a street railway;” that the only damage to be considered was such as the evidence showed was caused by the additional use for interurban business.</p>

This is an action for damages for personal injuries sustained hy the plaintiff through the alleged negligence of the defendant. On November 16, 1909, tbe time tbe injuries were received, tbe plaintiff was employed as an oiler by tbe defendant, a corporation engaged in tbe manufacture of engines and machinery of various kinds.

<p>Appeal from a judgment of tbe circuit court for Waukesha ■county: MaetiN L. Luece, Circuit Judge.</p> <p>This action was brought to enjoin tbe defendants from ■opening a highway ordered laid out over land owned by plaintiff and her husband as joint tenants.</p> <p>On May 11, 1909, a petition was presented to the town hoard of supervisors of the town of Ottawa, Waukesha county, Wisconsin, to lay out the highway in question. The board ■acted upon said petition and made out a notice fixing time and place of meeting to decide upon tbe application. Pursuant, to the notice a meeting was had by the board May 28, 1909, and an order laying out the highway made. The defendants, made no award of damages or entered into any agreement with the parties whose land was to be taken for said highway.</p> <p>Within thirty days after the making of the order an appeal was taken and commissioners appointed, and on July 10,. 1909, the commissioners approved the action of defendants. Thereafter, on November 24, 1909, the plaintiff secured from the circuit court for Waukesha county a writ of certiorari to-review the proceedings, and said writ was served on the town-clerk on November 24, 1909, but nothing further was done- and the papers were not certified to the circuit court. On December Y, 1909, the defendants withdrew the papers in the-matter of laying out the highway under the petition of May 11, 1909, and declared the proceedings taken a nullity, and' proceeded to act under another petition filed December 13, 1909. The defendants gave notice of time and place of meeting under the second petition, met and decided to lay out the highway, made an order to that effect, and awarded damages-to the plaintiff and others through whose lands the highway was ordered laid out.</p> <p>Notice was given to the plaintiff and other owners of land' through which the highway was ordered laid out to move their fences.</p> <p>The plaintiff claims that all the proceedings relative to the laying out of the highway under the second petition were and are without authority of law and void, and this action was brought to restrain the defendants from opening the highway claimed by defendants to be lawfully laid out under said' second petition.</p> <p>The defendants answered by way of admissions and denials respecting the proceedings taken. The court found that the highway was lawfully laid out under the second application- and ordered judgment dismissing the plaintiff’s complaint, with, costs. Judgment was entered accordingly, from which this appeal was taken.</p>

<p> Judgments: Assignment: Principal and agent: Apparent authority to direct application of moneys: Husband and wife. </p> <p>1. The assignee of a judgment takes it subject to the equities between the parties.</p> <p>2. Where the statute — sec. 2906, Stats. (1898) — provides a mode of assigning judgments, its requirements must be followed in order to secure to the assignee any rights which depend solely on the statute; but such statute is not exclusive and does not prevent the making of an assignment, good at least between the parties thereto, in any other lawful manner, and the equitable interest of such an assignee will be protected.</p> <p>3. Where a husband had agency powers concerning his wife’s property broad and general enough to include the power to direct a bank in what manner to apply the surplus fund arising from the collection of a judgment assigned to the wife, and the bank, having no notice from the transaction itself or otherwise of any limitation upon this power, made the application as directed, in good faith and in reliance upon the husband’s apparent authority, the wife is bound thereby even though, in giving the direction in question, the husband exceeded his actual authority.</p>

<p> Dead, bodies: Bight to custody: Unlawful removal: Parent and child. </p> <p>1. The father has the right to the care and custody of the body of his unmarried daughter for the purpose of providing proper obsequies and sepulture, and any one wrongfully invading this right is liable to respond in damages.</p> <p>2. The body of a girl killed by defendant’s electric car at a highway crossing was placed by the trainmen upon the car and, accompanied by a girl companion, was taken to Milwaukee, less than fifteen miles distant, where it was placed in a morgue and the father promptly notified. It appeared that the place of the accident was two and one-half miles from the father’s house, that snow had rendered the roads nearly impassable, that there was an uninclosed and unattended shelter for passengers at the place and a farmhouse near hy, and that defendant’s road ran through a well settled farming country. Held,, that the jury were warranted in finding that no right of the father was invaded by such disposition of the body.</p> <p>3. The jury were properly instructed in such case that defendant was not liable if what was done hy its servants with the body was done in good faith and solely for the purpose of accomplishing an early return thereof to the plaintiff, and if the acts and conduct of such servants were not characterized by recklessness or heartlessness.</p>

Lueck, Circuit Judge. Action for an injunction to restrain trespass upon real estate and for damages.

<p> Partition of land: Sale: Defective notice: Refusal of purchasers to accept: Conditional order for resale. </p> <p>1. Where, by mistake of a scrivener, the notice of a partition sale of land described a tract different from that ordered to be sold, the sale, if not void, was at least irregular and defective, and the purchasers, not being themselves at fault, were justified in refusing to take and pay for the land.</p> <p>2. An order directing a resale in such a' case should not be made conditional upon the purchasers at the former sale taking the land at the price then bid in case it did not bring such price at the resale. Kremer v. Thwaits, 105 Wis. 534, distinguished.</p>

<p>(1-3) Conflict of laws: Cause of action: Lex loci: Foreign laws: Pleading and proof: Presumptions. (4-10) Railroads: Injury to person at highway crossing: Contributory negligence: Failure to look and listen. (11-13) Trial: Taking questions from jury: Review on appeal.</p> <p>1. A right to be vindicated by an action in court is dependable on the law of the country where the cause of action is claimed to have arisen.</p> <p>2. For establishment of a cause of action dependable upon the law of a foreign country such law should be pleaded and proved the same as any other essential fact.</p> <p>3. Where a violated right involving a cause of action is dependable on the law of a foreign country, and that law is not brought to the attention of the court by- pleadings and evidence, the same is conclusively presumed to he like the law of the forum.</p> <p>4. Presence of a railroad track is such a significant warning of probable danger, that ordinary care requires a person before attempting to cross, to first use his senses of sight and hearing, to the right and to the left, for discovery of any train which may be in dangerous proximity.</p> <p>5. Failure to perform the duty to look and listen, in the circumstances stated in the foregoing, when there is opportunity therefor, is fatal want of ordinary care.</p> <p>6. The duty to look and listen, in the circumstances indicated, includes duty to see or hear an approaching train, if one is in plain sight or hearing. Hence the declaration of a person as to his having performed such duty yet did not see or hear a train, though one was in plain sight or hearing from his position, does not present a jury question, and most emphatically so as to pedestrians.</p> <p>7. The rule stated as to looking, listening, seeing, and hearing, is one of law, not of mere evidence.</p> <p>8. Failure to comply with the aforesaid rule is not excused by mere diversion of attention or absorption in thought, or anything short of practical incapacity to give attention by looking and listening, by reason of some actual prevention, — physical or its equivalent.</p> <p>9. The rule stated is not open to exception to fit the varying notions of different persons as to when a train is in dangerous proximity to the crossing.</p> <p>10. A companion rule to the foregoing is this: where one was so circumstanced as regards crossing a railroad track that it was incumbent upon him to use his senses to discover whether there is an approaching train in dangerous proximity, he is. conclusively presumed to have been able to see or hear one if' others no more favorably situated therefor did so without difficulty.</p> <p>11. In case of evidence being so conclusively one way as not to support a verdict the other, the cause should be taken from the-jury on motion therefor.</p> <p>12. A refusal to direct a verdict involves judicial determination that there is such conflicting evidence and reasonable inferences therefrom that a verdict either way would not be wholly without proof to sustain it.</p> <p>13. In case of such a judicial determination as indicated in the last. foregoing, or a like determination on motion after verdict, it should not be disturbed on appeal, unless, giving due weight to the superior advantage possessed by a trial judge to reach, a just result, it yet appears by the record to be clearly wrong,</p> <p>[Syllabus by Marshall, J.]</p>

<p> Slander: Damages: Malice: Conditional privilege, </p> <p>1. Absence of express malice in tbe utterance of false and. defamatory words is no defense as against compensatory damages.</p> <p>2. Tbe communication of a report in response to a request by one interested in tbe matter is not conditionally privileged if defamatory matter is added to tbe report by tbe person professing to repeat it.</p>

S. Gbiswold, Judge. Tbis action was brought to recover commissions alleged to-be due tbe plaintiff under tbe following contract: “Tbis agreement made in duplicate tbis lltb day of June, 1906, between tbe Glenn Rode Mineral Spring Company, a corporation, party of tbe first part, and Paul Q. Dore, of Wau-kesba, Wisconsin, party of tbe second part, “Witnessetb: That tbe party of tbe second part is to bave charge of tbe bottling plant of said corporation, situated in tbe city of…

<p>Municipal corporations: Street improvements: Special assessments: Remedy by appeal exclusive: Equitable issues, how tried: Judgment. i</p> <p>1. The appeal from the final determination of the common council, provided for in secs. 925 — 184 and 925 — 185, Stats. (1898), is the' exclusive remedy of a lotowner affected by a street improvement for any grievance, legal or equitable, which he may have by reason of the making of such improvement.</p> <p>2. The provision in sec. 925 — 184, Stats. (1898), that “such appeal shall be taken, tried and determined ... in like manner as in. case of appeals from the disallowance of claims,” etc., does not mean that equitable issues are triable by a jury, even though the legal claims mentioned are so triable.</p> <p>3. Where, in an equitable action to set aside a special assessment for a street improvement, the failure to proceed by appeal was pleaded in the answer, but it was conceded that the amount, assessed exceeded the actual cost of the improvement and defendant tendered judgment restraining the issuance of assessment certificates in excess of the amount ratably chargeable to plaintiff’s land, the denial by the court of any further relief was proper.</p>

<p>Appeal from a judgment of the circuit court for Door county: S. D. Hastings, Circuit Judge.</p> <p>On February 14,1908, plaintiff and defendant entered into a contract whereby the plaintiff agreed to sell to the defendant certain varieties of seed peas. Among other things the plaint-tiff agreed to furnish 1,000 bushels of “Advancer” peas, and guaranteed seventy-five per cent, delivery. Such peas were to he grown during the season of 1908, to he delivered after harvest, but in season for the planting trade for the year 1909. A quantity of peas was delivered under this contract to the •defendant, it giving its promissory notes in payment therefor ■according to the terms of the contract. The peas so sold were in turn sold by the defendant to various farmers for the purpose of planting, and under contracts by virtue of which the ■farmers agreed to sell the peas raised from such seed to the •defendant. The plaintiff brought action upon the notes. The defendant, among other things, interposed a counterclaim •setting forth that the peas furnished were not “Advancer” peas; that they were received by the defendant without knowledge of that fact; that there was no means of discovering that ■they were not “Advancer” peas until after they had been sowed and the seed had germinated, and that as soon as the •defendant discovered that the peas were not of the variety purchased it notified plaintiff. The counterclaim further set ■forth that the peas were mixed with other different varieties, making it impossible to harvest them without a mixture of ■overripe peas of varieties other than “Advancer.” Facts are pleaded tending to show damage, and judgment is asked for the amount thereof. On the trial the court allowed the defendant to amend its answer by setting up a new counterclaim for the purchase price of the peas.</p> <p>The trial court held that the peas were sold without warranty as to quality or description, and directed a verdict for "the plaintiff for the amount claimed, less $343.75. The peas were shipped from Chicago and invoiced on the basis of fifty-six pounds to tbe bushel. The court held that the defendant, was entitled to receive sixty pounds per bushel, and hence-made the foregoing reduction. Erom a judgment in plaintiff’s favor defendant appeals.</p> <p>cited, among other authorities, 24 Am. & Eng. Ency. of Law (2d ed.) 1157, and cases cited; Benjamin,. Sales (6th ed.) §§ 600, 602, 605; Id. p. 636; Stillwell & B-Mfg. Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601; Colum-bian I. W. ■& D. D. Co. v. Douglas, 84 Md. 44, 34 Atl. 1118,. 33 L. R. A. 103, 57 Am. St. Rep. 362; Chanter v. Hopldns,. 4 M. & W. 399, 404; Reed v. Randall, 29 N. T. 358, 86 Am. Dec. 305; Riclcetts v. Hays, 13 Ind. 181; McConnell v. J ones,. 19 Ind. 328; 30 Am. & Eng. Ency. of Law (2d ed.) 129;. Nicoll v. Modern 8. 8. Co. 143 Wis. 545, 128 N. W. 72 7. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; McCaa v. Elam D. Co. 114 Ala. 74, 21 South. 479, 62 Am. St. Rep. 88;: Wolcott, J. •& Co. v. Mount, 36 N. J. Law, 262, 13 Am. Rep-438.</p>

<p>Master and servant: Dangerous machinery: Duty of master to explain: What servant is bound to know: Presumptions.</p> <p>1. An employer who sets inexperienced or youthful employees at work about complicated machinery is charged with the duty of explaining to them any dangers which exist about such machinery and which are not obvious to employees of like apparent age and experience while exercising ordinary care.</p> <p>2. But employees of ordinary intelligence are bound without explanation or warning to know and act upon those simple natural laws and physical facts which are universally acted upon by persons of like apparent intelligence in the ordinary affairs-of life.</p> <p>3. While the water tank on a steam log hauler was being filled by means of a steam siphon, plaintiff, whose duty it was to assist in such filling, started to take off a metal cap (which he had himself substituted in place of a wooden plug with a vent hole) upon an opening in the top of the tank, and was injured by the cap being suddenly blown off as he removed its fastening. It appearing that plaintiff was a man twenty-six years old, of ordinary intelligence, with a common-school education and twelve years’ experience in lumber camps and with machinery in sawmills, and that he had some knowledge of elementary natural laws and considerable mechanical ingenuity and initiative, he-is conclusively presumed to have known, without special warning, the dangers which might arise from pressure in the tank while it was being filled in that way in case there were no vent hole in the cap or in case the vent therein should become obstructed by freezing.</p>

<p>Appeal from a judgment of tlie circuit court for Brown -county: S. D. Hastings, Circuit Judge.</p> <p>Action for a personal injury.</p> <p>Plaintiff was riding in a box car, by permission, as be claimed, to take care of horses he was having transported over defendant’s road. While the train, in which the car was to be taken out from Pulaski, the loading station, was being made up, and, as plaintiff claimed, he was in the car watching his horses, in the switching operation, it was bumped so forcibly, he was thrown down, was caught 'between the side of the door opening and the door, -which., by the sudden jar, was caused to close with such force as to jam and seriously injure his head. The negligence complained of was in so forcibly bumping into the car as to endanger plaintiff’s personal safety.</p> <p>The complaint and answer left for litigation the questions of whether defendant was guilty of actionable negligence and plaintiff of contributory negligence.</p> <p>There was evidence to the effect that the engineer did not know plaintiff was in the car. The latter visited the station agent, prior to the day of the accident, to inquire about shipping the horses and said to such agent that he wanted to ride with them; not using the term, ride in the car with them. Later, he drove the horses into the car which was furnished and located therefor on the side track at the proper loading place. When the train came, which was to take the car out, he told the conductor it was ready and he wanted to ride with the horses. Thereupon he was informed that he could, hut would have to buy a ticket and to go to the depot and sign his name. Pursuant thereto he went to the depot; the conductor and other members of the train crew accompanying him. Upon arriving there he signed his name to a paper, or in a book, presented to him by an office man. The agent was absent. He did not ask for a ticket as he thought the person at the office had no right to sell one and the conductor was in a hurry to move the car. Upon signing his name he immediately returned, boarded the car, and the crew commenced operations to move it out to the main track and into the train. Before the train started the conductor was informed that there was a man lying down in the car and, thereupon, he went thereto and found plaintiff in an injured condition. • On the whole, the controversy was whether the conductor knew, or ought to have known, plaintiff was in the car and have informed the engineer thereof, to guard against the latter being unmindful of the situation and danger of his handling the car so violently as to imperil plaintiff’s personal safety; and whether plaintiff was guilty of fatal contributory fault, in riding in the car in the location he was at the time of the accident.</p> <p>The jury found that the station agent gave plaintiff to understand he might ride in the car with the horses; that the conductor gave him permission to do so; that the latter, at the time of putting the car into the train, knew plaintiff was therein; that he ought to have known such was the situation; that he was guilty of negligence in not informing the engineer thereof; that such negligence led to the car being handled regardless of the danger to plaintiff, which fact was the proximate cause of the injury, without any want of ordinary care on his part contributing thereto, and that he suffered damages to the extent of $2,700.</p> <p>The court, on motion, reversed the finding as to the conductor having had actual knowledge plaintiff was in the car when the accident happened, but, on the verdict as so changed, rendered judgment for plaintiff for the damages found with costs.</p>

D. HastiNgs, Circuit Judge. This is an action to recover damages for personal injuries alleged to have been caused by tbe negligence of tbe defendant in failing to securely fence or guard tbe macbinery wherein tbe plaintiff was injured. It is conceded that under tbe provisions of sec. 1636;’, Stats.

D. Hastings, Circuit Judge. This action was brought to restrain the defendant from entering upon land known as Lake street, in front of plaintiff’s premises in the city of Manitowoc, Wisconsin, and so obstructing the same as to prevent plaintiff from having ingress and egress to and from his premises. The defendant set up certain former judgments as a bar to this action.

At the times in question in this action the plaintiff and the McCord Lumber Company were the owners of certain property bordering on Superior Bay. The plaintiff subsequently became the exclusive owner of this property. Prior to 1899, the time plaintiff and his co-owner leased the lands in question to the defendant, a sawmill had been constructed upon this property.

D. Hastings, Circuit Judge. The plaintiff and the Orivitz Flouring Mill Company entered into a contract whereby the former agreed to sell to the latter certain flouring mill machinery. There were but two stockholders, both nominal, in the corporation aside from the defendant Kutch. These stockholders were apparently elected as officers, but refused to serve, and asserted as a matter of fact that they were not stockholders.

D. HastiNgs, Circuit Judge. Tbe complaint alleges, in substance, that on tbe 12tb day of May, 1906, plaintiff was at tbe city of Minneapolis, Minnesota, and, being desirous of returning to bis then home in Escanaba, Michigan, be purchased of defendant a passenger ticket, good for transportation over defendant’s line of road between said points, and be also purchased of tbe defendant a sleeping-car ticket entitling him to a berth in a sleeping car then operated by it between…

Ross, Circuit Judge.. contended, inter alia, that an omission to find formally that there was negligence or ■want of ordinary care is immaterial if all the material facts are found from which it can be -inferred. Kelléher v. M. •& N'.'R. Co. 80 Wis. 584, 50 N. W. 942; Patry v. C., St. P., M. & O. R. Go. 82 Wis. 408, 52 N. W. 312; Trapp v. New Bird-sail Go. 109 Wis. 543, 85 N. W. 4J8. Besides, any such formal omission would be cured byThe statute, sec. 2858m.

D. UastiNGS, .Circuit Judge. Action for personal injuries. The defendant maintained a double track street railway upon Soilth Broadway street in the city of Green Bay, which runs ,north and south, and is intersected by West Mason street, at right angles, the latter running east and west. The intersection of these two streets is in the business portion of the city. The south-bound cars run on the west track and the north-bound on the east track.

B. Beldeu, Judge. This action is brought to recover damages for personal injury. The defenses interposed were (1) a release and settlement; (2) contributory negligence on the part of the plaintiff; and (3) no negligence on the part of the defendant. A special verdict consisting of twenty-oñe questions was returned by the jury.

<p>Appeal from a judgment of the circuit court for Ashland county: E. W. Helms, Judge.</p>

H. Reid, Circuit Judge. Tbe complaint alleged that tbe defendant was engaged in tbe business of manufacturing and dressing lumber, and tbat defendant bad in operation in its planing mill a machine known as a “matcher,” equipped with rapidly revolving knives and gearing, tbe frame of wbicb was about fifteen feet long and six feet wide, tbe machine being used for surfacing lumber; tbat one foot distant from tbe rear end of such matcher a machine known as a lath machine was…

<p> Sales: Warranty of furnace. </p> <p>A warranty that a combination furnace (one in which either coal or wood might be used as fuel) would properly heat the vendee’s house in the coldest weather, was not a warranty that such furnace would heat the house in the coldest weather when wood alone was used.</p>

This action was brought to recover damages for the destruction of plaintiff Goolcs barn and other property by fire, alleged to have been caused by the emission of sparks from a traction engine while being operated by defendant on the highway near plaintiff’s premises. [The other plaintiff is a fife insurance company which had paid $626.65 to plaintiff Gooh in settlement of his claim against it for the loss.] At the close of plaintiffs’ case motion for nonsuit was denied, and…

<p> Appeal: Reversal: Duty of plaintiff as to new trial: Dismissal of action. </p> <p>1. Where a judgment in plaintiffs favor was reversed and the cause remanded with directions to bring in other parties, frame issues, and reopen the case for the reception of further evidence and the making of findings, and plaintiff failed to bring the cause to trial or to obtain a continuance within one year after such reversal, the action was properly dismissed under sec. 3072, Stats. (Supp. 1906: Laws of 1905, ch. 365), although plaintiff did, within the year, file a petition to amend the complaint and bring in the additional parties.</p> <p>2. A continuance for cause might have been applied for before the case was noticed for trial.</p>

<p>Appeal from a judgment of the circuit court for Eusk county: James Wickham, Circuit Judge.</p> <p>Action to recover for a personal injury. The pleadings were as indicated by the following which the evidence established, or tended to:</p> <p>Plaintiff, a man about twenty-seven years of age of average intelligence and experience, while in the employ of defendant operating a machine, called a barker, was severely injured in his left hand and arm. The general nature of the machine was this: A heavy iron disk-shaped wheel, about four feet in diameter, carried at the end of a shaft, there being on the outer and exposed face four knives about eight inches long, fixed thereto and set out sufficiently to engage and plane off bark from blocks of wood when pressed against them for that purpose, which disk turned, when at full speed,-700 or more revolutions per minute. Knives, from time to time, were required to be removed and sharpened. A cover over the back of the disk and some five inches therefrom forming a casing extending around but clear of the rim of the disk. An opening in the back of the cover sufficiently large to enable a person to insert his hand through and, with a wrench, turn off the burrs .from the bolts holding the knives in place. Projections on the back side of the disk, standing out three to four inches, rendered it exceedingly dangerous to so insert a hand for loosening the burrs without the disk being at rest. A shaft stationed some two and one-half feet from the floor. A tight and companion loose pulley seven inches on the face and about fourteen inches in diameter — by means of which and thejr connections the disk was operated, — located on the shaft three feet or so from the back of the disk, such pulleys being far enough apart to clear each other and the tight one being nearest the disk. A drive belt some thirty feet long, six inches wide, of heavy leather, reaching the pulleys from the main drive shaft below the floor.</p> <p>The disk, weighing some 500 pounds, in use, revolved with such velocity and force that, if, when at full speed, the belt was moved to the loose pulley it would continue to turn for some time. Upon moving the belt from the tight to the loose pulley to stop the machine, a piece of wood in the form of an ordinary broomstick, was laid on the boxing of the pulleys, which extended from the floor belt opening to within an inch, more or less, of the pulleys, and just under the clearance between them with the end on the up or slack side of the belt between two large nails, driven into the edge of the box far enough apart to receive it below the heads, they being bent in to prevent it from raising, materially, or rolling, and with the other end resting against a nail driven into the edge of the box on the opposite side, and on the side of.the stick toward the tight pulley. The stick so placed, with the nails in position to retain it and properly performing their office, and the belt on the loose pulley, efficiently prevented such belt from engaging the tight pulley and giving motion thereto. In case of the nails, particularly either or both on the side of the stick toward the tight pulley, being bent over in such direction, the stick could roll somewhat and raise up a little, permitting the belt to creep toward the tight pulley, and possibly reach or engage it slightly. The stick could not raise up much as it only slightly cleared the pulleys.</p> <p>Plaintiff, on the occasion in question, understood the mechanism of the machine, the use of the stick, as aforesaid, to prevent the drive belt from unexpectedly starting the disk to revolve, and danger of attempting to remove the knives while the disk was in motion. The nails on the up side of the belt were bent over a little towards the drive pulley and spread sufficiently at the top to permit of the stick rolling or raising up a little. It could not raise to the top of the nails by reason of the interference aforesaid. Plaintiff had operated the machine for a considerable time and taken off the knives, as required. He knew the danger of starting to do it while the disk was in motion. On the particular occasion he placed the belt on tbe loose pulley, as usual, and put tbe broomstick in place. He testified tbat after tbe disk stopped revolving be inserted bis baud, bolding tbe wreficb, tbrougb tbe opening to loosen tbe knife bolt. In sucb circumstances there had never been an unexpected starting of tbe disk to revolve either in bis experience or tbat of any other person. As be was in tbe act of loosening a burr tbe disk suddenly started, catching bis band and causing tbe severe injury complained of. Tbe belt was somewhat loose, as was claimed, allowing it to raise a little, intermittently, and move a little from side to side on tbe pulley. It touched tbe stick on tbe downward side of tbe belt but not on tbe upward side. Immediately after tbe accident tbe stick was found in place, tbe belt on tbe loose pulley and tbe disk still moving. Two or three minutes thereafter it came to a rest without any change in tbe belt or stick. Plaintiff, as be testified, just before be proceeded to loosen tbe knife bolts, complained to tbe foreman about tbe belt being too loose, was requested to proceed, and given assurance tbat tbe belt would be fixed.</p> <p>Tbe cause was submitted to tbe jury, resulting in these findings in addition to those relating to tbe injury and tbe amount of damages: Tbe belt was running on both pulleys when plaintiff was injured. Tbe stick used to prevent tbe belt from slipping from tbe loose to tbe tight pulley was in its usual position between tbe nails when plaintiff was injured. Tbe belt was defectively loose. Defendant failed to exercise ordinary care in respect thereto and tbe arrangement to prevent tbe belt from automatically slipping from tbe loose pulley so as to start tbe other. Sucb fault was tbe proximate cause of plaintiff’s injury. Prior to tbe injury plaintiff notified tbe foreman that tbe belt was defective and requested him to repair it. Tbe foreman promised to do so. Plaintiff continued to work relying thereon. He did not remain a longer time than was-necessary to enable defendant, acting reasonably, to make tbe repairs. Plaintiff was free from contributory fault. Tbe disk bad stopped moving by its own momentum before plaintiff was injured. He did not assume tbe risk of tbe disk unexpectedly starting by reason of tbe belt slipping from tbe loose to tbe tight pulley.</p> <p>Damages were fixed by tbe jury at $5,000, and judgment was rendered on tbe verdict in plaintiff’s favor; numerous exceptions being saved in defendant’s bebalf for a review by tbis court, including an exception to a refusal of judgment in tbe latter’s favor notwithstanding tbe verdict, and refusal to correct tbe verdict so as to find in harmony therewith.</p>

<p>Appeal from a judgment of tbe circuit court for Pond du Lac county: Chestee A. To week, Circuit Judge.</p> <p>Action for personal injuries sustained by reason of a defect in a sidewalk. On tbe 8tb day of May, 1909, at about 6:30 in tbe evening, tbe plaintiff, accompanied by bis daughter, was walking borne from bis work along tbe sidewalk on tbe south side of Main street in tbe defendant city, carrying some carpenter tools in bis bands. When at a point on said sidewalk about twelve feet north of tbe north line of Twelfth street, one or more of tbe boards, when stepped upon, tipped up, causing tbe plaintiff to catch bis foot thereon and to fall with great violence upon tbe sidewalk. It is claimed tbe stringers of tbe walk, which ran lengthwise, bad become so rotten that sis of tbe boards at tbe place of tbe injury were loose and entirely unfastened, and that tbe boards themselves were more or less decayed. Notice of tbe injury was served upon one G. P. McEntee, claimed to be tbe sidewalk superintendent of tbe defendant city. Tbe jury, by special verdict, found (1) that the boards of tbe sidewalk at tbe place where plaintiff fell were loose from tbe stringers; (2) that such loose condition of tbe boards rendered tbe walk at tbe place unsafe for public use; (3) that such loose condition of tbe boards was tbe proximate cause of plaintiff’s injuries; (4) that tbe city authorities in tbe exercise of reasonable diligence ought to have repaired tbe walk prior to tbe time of plaintiff’s fall; (5) that there was no want of ordinary care on tbe part of plaintiff that contributed to produce bis injuries; and (6) that plaintiff was damaged in tbe sum of $900. Prom a judgment entered thereon in favor of the plaintiff tbe defendant appealed.</p>

<p> Bills and notes: Payment out of collateral: Banhs and banhing: Ac- * oommodation paper. </p> <p>1. Where a note given to a bank with collateral security bas been tally paid out of sums realized by tbe receiver of tbe bank from sucb collateral, tbe receiver bas no right to indorse on the-note tbe amount which tbe maker bas on deposit in tbe bank.</p> <p>[2. Whether one can give an accommodation note to a bank, when he knows or ought to know tbat it is to be used to swell its-apparent, assets, and afterwards defeat a recovery thereon by the receiver of the bank on tbe ground that the note was without consideration, not determined.]</p>

<p> Railroads: Killing of watchman at street crossing: dross negligence: Questions for jury. </p> <p>1. In an action for death of a watchman who was run over by the tender of a switch engine hacking over the street crossing at which he was stationed, it is held that the positive testimony of members of the switching crew on the engine that they kept a vigilant lookout for persons at the crossing and did not see the decedent was not overcome by the physical facts of the situation, and that the trial court properly ruled as matter of law that such crew was not guilty of gross negligence.</p> <p>2. Omission of the crew on a switch engine to keep a lookout for persons at a street crossing cannot be said to have been gross negligence unless it appears that their conduct was so reckless and wanton as to suggest that they were wholly indifferent to the rights and safety of persons whose peril of being injured they must be held, under the circumstances, to have known.</p> <p>3. The evidence in this case — showing, among other things, that at the time in question all approach to the crossing from one direction was cut off by a train on another track, and that it was known that it was decedent’s duty to guard the crossing and to warn people to keep off — is held not to warrant any inference that the crew of the switch engine was apprised of any actual or imminent danger to any one from running the engine over the crossing without keeping a lookout. ,</p>

<p>Sales: Default in cash payment: Vendor's. right to reclaim goods: Waiver.</p> <p>1. Upon failure of the purchaser to make an agreed cash payment the vendor’s right to retake the goods sold must he asserted without unnecessary delay or will he deemed to have heen waived.</p> <p>2. By a delay of forty-five days after receiving notice of the nonpayment of a check given for an agreed cash payment on a typewriter, before taking any steps to reclaim the property, the vendor waived the condition as to the cash payment and permitted the delivery to become absolute..</p>

<p> Public utilities: What are: Landlord furnishing heat, etc., to tenants and neighbors: Railroad Commission. </p> <p>1. Where a landlord operates a plant in his building to furnish light, heat, and power to the tenants therein and incidentally, in order to enable him to operate the plant economically, to a few neighbors, this is not a furnishing of heat, light, or power “to or for the public” and does not constitute him a “public utility” within the meaning of sec. 1797m — 1, Stats. (Laws of 1907, ch. 499).</p> <p>2. If the product of such a plant is intended for and open to the use of all the members of the public who may require it, to the extent of its capacity, the owner thereof is a “public utility,” irrespective of the number of consumers actually supplied.</p> <p>3. But the word “public,” in said statute, must be construed to mean more than a limited class defined by the relation of landlord and tenant, or by nearness of location, as neighbors, or more than a few who by reason of any peculiar relation to the owner of the plant can be served by him.</p>

J. TueNee, Circuit Judge. It appears by tbe complaint tbat tbe defendant is a manufacturing corporation in Milwaukee, employing at its shops many workmen, among whom are tbe plaintiffs. Tbe plaintiff Borgnis is tbe superintendent of one of tbe departments in tbe defendant’s establishment at a salary of $2,000 per year, under a contract extending some time in tbe future.

<p>Appeal from a judgment of tbe superior court of Douglas county: Chaeles SMITH, Judge.</p> <p>Actiou to recover damages for tbe death of one William McHolm, an employee of defendant, wbo w&s killed while at work on defendant’s dock in Superior. Tbe facts which the evidence tends to prove áre briefly as follows: The defendant owns and operates large coal docks and sheds at the city of Superior. The shed where the accident occurred is 200 feet wide and 465 feet in length. It was equipped with several so-called “bridges,” consisting of two parallel steel stringers eighty-five feet from the floor, supported hy hangers from the .roof. The stringers were laid near together, their top surface about twenty-five inches in width, and each carried a rail or track on its inside edge. On the rails of each bridge ran trucks with wheels, from which was suspended a so-called car or trolley entirely below the stringers. This car was about twenty-five feet in length, carried motors and gearing for its own propulsion, and had suspended from it by cable a clamshell or bucket, which carried coal from vessels at the dock into the sheds and also from piles to bins in the sheds. At the rear end of the car was a cab with glass front, in which was the operator who controlled the movements of the car and clamshell. The only parts of the moving car or cab which projected above the stringers were the wheels and axles, which occupied about eight inches in width along the inside of each stringer, leaving a flat surface of about seventeen inches on the outside of each stringer along its entire length. Rear these stringers were suspended electric arc lights for lighting the interior of the shed, and so hung that they could be raised by cable with ratchet attachment to a convenient height for trimming by a man standing or sitting on the stringer. The trimming took place every nine or ten hours, and occupied about ten minutes’ time, and the car, when in use, continued to run back and forth during the operation. Doing this work the trimmer walked along the stringer from point to point where the lights were suspended. About five feet above the stringer and a little to the outside and parallel with it was a steel strut or brace which the men took hold of as they went back and forth on the stringer. There was a whistle on the car or trolley which the motorman used when he started the car to work in the morning or at noon to give the oiler notice that electricity was about to be turned on, but which does not appear to have been used at other times with any regularity. ISTo rule had been made by the defendant requiring warning to .be given before the car was moved. Tbe sbed was a new one and was not entirely finished at the time of tbe accident, some of tbe contractors’ men being yet at work on it, but it was in nse and tbe bridge and lights bad been in operation since August previous. Tbe plaintiff’s intestate bad been employed for some years by tbe defendant on its old docks as chief engineer, and was transferred to tbe dock in question in tbe early fall of 1910, and was employed as chief electrician until December 1st, when be was superseded by one Perks and became assistant electrician. While chief electrician tbe work of trimming tbe lights was done by an assistant, but when Perks took charge be assigned that duty to tbe intestate. On tbe morning of tbe accident (December 15, 1910) Perks and tbe intestate were engaged in dropping a cluster of incandescent electric lights from tbe stringer of one of tbe bridges for tbe purpose of throwing more light below, and in tbe course of tbe work the intestate bad gone out on tbe stringer, tbe car being in operation. As tbe car passed tbe place where be was standing on tbe stringer tbe cluster dropped suddenly, and tbe intestate plunged from tbe stringer to tbe floor, receiving injuries from which be shortly died.</p> <p>Tbe following special verdict was returned by tbe jury:</p> <p>“(1) Was decedent’s fall caused by him being struck by the car? A. Yes.</p> <p>“(2) Was tbe defendant guilty of any want of ordinary care in its failure to promulgate rules and regulations for tbe giving of warning in tbe movement of its trolley car upon the track in question to decedent while at work on tbe track stringer at tbe time of tbe accident? A. Yes.</p> <p>“(3) If you answer tbe above 'Yes,’ then: Was such failure the proximate cause of the death of decedent ? A. Yes.</p> <p>“(4) Was deceased guilty of any want of ordinary care which contributed proximately to cause tbe accident ? A. No.</p> <p>“(5) Did tbe deceased assume tbe risk? A. No.</p> <p>“(6) Should tbe court render judgment for plaintiff, for what sum is she entitled to as damages? A. $9,000.”</p> <p>Judgment being rendered for the plaintiff on the verdict, the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court-for Douglas county: EeaNK A. Eoss, Circuit Judge.</p> <p>Tbis is an action to recover damages for personal injuries received by tbe plaintiff on February 9, 1910, while employed by tbe defendant as an oiler on tbe defendant’s coal dock at Superior, Wisconsin.</p> <p>The plaintiff was thirty-one years old at the time of the injury and had lived in the United States about eleven years. He commenced work for the defendant December 4, 1906, and worked for the defendant nearly continuously until the time of the accident. Before he became an oiler he had worked at other kinds of work for about two years. He worked as oiler on the bridge, which is a structure like a high bridge, made of angle irons and cross-beams riveted together. The bridge is about 300 feet long, extending across the dock in a northerly and southerly direction, and is about fifty feet above the floor of the dock. Upon a track, running the full length of the bridge, is a four-wheeled carriage used for the purpose of running the buckets and clams back and forth on the dock. The carriage is controlled by a three-quarter-inch steel cable attached to the bottom of the carriage. From the carriage the cable passes between the tracks to a drum in the hoisting room at the southerly end of the bridge, thence out of the hoisting room in a northerly direction over the top of the carriage to the north end of the bridge, where it passes over a sheave or grooved wheel, thence back in a southerly direction to the carriage to which it is fastened. By means of levers and appliances in the hoisting room the operator can raise or lower buckets from the dock to the carriage and can move the carriage in either direction along the tracks by means of the steel cable.</p> <p>Plaintiff’s injuries were received at the grooved wheel or sheave at the northerly énd of the bridge. This wheel is about thirty inches in diameter. The cable is held in place by a groove on the rim of the wheel. The wheel is of cast iron, cast with a web instead of spokes, and is about three inches wide on the rim. The groove is about three inches deep. The shaft on which the wheel revolves is stationary and is fastened to the top of the track. The wheel is held in place on the shaft by a collar on each side of the wheel, which are fastened to the shaft by set-screws running through the collar and into the shaft. The set-screws project above the collars, which they fasten to the shaft, about five eighths of an inch. The set-screws are about three inches from the hub of the wheel.</p> <p>It was the plaintiff’s duty as oiler to put oil upon the grooved wheel and the cable at the northern end of the bridge. In performing this duty he used a stick made from an old broom handle, about eighteen inches long, to one end of which was tied a bunch of waste about four inches through. The oiler stands south and west of the wheel with one foot upon an angle iron close to the shaft of the wheel, the other resting upon one of the rails of the track. He held himself with his left hand upon an angle iron and dipped the swab on the stick into a pail of thick oil standing upon the cross-beams over the wheel in front of him. It was necessary for him to bend forward and to press the swab upon the cable and wheel in order to oil the cable and the groove of the wheel. The cable from the top of the carriage came from a point above the wheel and hence came into contact with the wheel at a point north of the center of the wheel.</p> <p>The plaintiff testified that he applied the oil swab as he had been instructed; that he applied pressure to press out the oil by drawing it over the edge of the wheel; that the swab slipped down from the edge of the wheel and came into contact with the set-screw and was caught between the set-screw and the revolving hub of the wheel; that his hand was flung up to the edge of the wheel and under the cable; and that he suffered the loss of all of the fingers on his right hand, the greater part of the palm of his hand, and part of the thumb. As a result of the injury the plaintiff suffered great pain from blood poisoning.</p> <p>The jury found that the plaintiff was injured in unguarded machinery so located as to be dangerous to employees in the discharge of their duties; that failure to guard the machinery was the proximate cause of the injury; and that the plaintiff was not guilty of contributory negligence.</p> <p>The court awarded the plaintiff judgment for damages. This is an appeal from the judgment on the verdict.</p>

<p> Principal and, agent: Assumption of agency: Employment of sub-agent: Ratification: Evidence: Instructions to jury: Harmless errors. </p> <p>1. One may make another his agent by ratifying such other’s assumption in the matter, and thereby become liable both to such other and to the third person with whom he deals, as well as by an original contract of employment.</p> <p>2. Such ratification may occur as well when a person without authority in fact from the principal assumes to have it under another falsely pretending to represent the principal and to employ a subagent, as where there is no intermediary in the matter.</p> <p>3. There can be no ratification within the meaning of the foregoing rules without action on the part of the principal based on knowledge of the facts; but the ratification may appear circumstantially as well as expressly.</p> <p>4. Ratification in such, case may he presumed from conduct of the. principal, such as carrying out the contract and accepting the benefits in like manner as if the person assuming to be authorized to represent him had authority in fact, he at the time-of such apparent approval having knowledge of all essential facts and particularly the assumption of agency.</p> <p>5. If a person actually or apparently clothes another with authority to represent him generally or in a particular line of business, he is bound by whatever contract such other may make within the scope of the actual or apparent authority, including the making of subagency contracts.</p> <p>6. Error, if any, in the admission of a writing purporting to have been executed on the part of defendant by an agent, because-the proper foundation for its introduction was not seasonably-laid, was cured by proof that the defendant knew of the arrangement embodied in the writing, became a party thereto,, carried it out exactly, and received the full consideration named therein.</p> <p>7. Errors in the reception or rejection of writings are not prejudicial where all matters embodied in such writings otherwise appear in evidence without objection.</p> <p>8. An instruction relating to ratification by the principal of the-act of one assuming to be his agent, though held correct as a whole, is criticised because of its frequent use of “and” instead of “or.”</p>

<p> Casualty insurance: Default in payment: Forfeiture: "Waiver: Es-toppel: Pleading. </p> <p>1. Where the conduct of an insurance company with reference to strict observance by the assured of the agreement as to payment of dues is such that, naturally and in fact, it causes the assured to believe that variances from such agreement, within the limitations suggested by such conduct, will be regarded by the company as sufficient performance to preserve the integrity of the agreement, it will be conclusively presumed that the minds of the parties met upon that basis, displacing, to that extent, the letter of the contract; this upon the equitable doctrine of estoppel in pais.</p> <p>2. Where the assured customarily paid his dues a few days after the stipulated time, but the company nevertheless issued the ' ordinary formal receipts without taking notice of the default and as if no lapse of the insurance risk had occurred, a provision of the contract that, upon payment within thirty days after a default, the assured “may be reinstated and receive a new card of membership, but he shall receive no insurance benefits . . . that may have accrued between the date of such default and the date of his reinstatement,” etc., did not operate to displace the estoppel in pais under the rule above stated, but, together with the conduct mentioned, shows that it was the intention of the company to treat the contract as not having lapsed at all.</p> <p>3. Where there is no opportunity to plead an estoppel or waiver there is no necessity for pleading it. Thus, in an action on an insurance policy, where waiver was not a part of plaintiff’s cause of action, but forfeiture, if there was one, was a defense, and such defense was pleaded but not so as to call for a reply, plaintiff might prove a waiver of the forfeiture without having pleaded it.</p>

<p> Building contracts: Construction: Conditions precedent or independent covenantsf “Liens and claims:” Refusal of final certificate: Fraud: Substantial performance: Changes: Extension of time for completion. </p> <p>1. The specifications accompanying a building contract required the contractor to give certain written guaranties, with bond, as to the roofing and cement work, hut the contract itself provided only for the furnishing of materials and doing the work as specified, for completion of the structure within the time designated and to the satisfaction of the superintendent, and for payments, from time to time and upon final settlement, without any reference to or dependence upon the prior giving of such guaranties. The owner made no demand for the guaranties as a condition of final payment, and the superintendent did not base his refusal to issue his final certificate upon the contractor’s failure to furnish them. Held, that said provisions in the specifications were independent povenants, and the giving of the guaranties was not a condition precedent to the contractor’s right to maintain an action for the amount due on the contract.</p> <p>2. A provision in a building contract that the structure shall be turned over “free and clear of all liens and claims for materials furnished and work and labor done, or otherwise, arising ... in favor of any subcontractor, materialman, workman, or laborer,” calls only for freedom from all liens and from all claims which might become liens on the property.</p> <p>3. Evidence sustaining findings by a referee that a contractor had substantially completed the building, that the owner accepted and occupied it before suit, but refused to pay more than $424.16, though $1,794.75 was due, and that the superintendent neglected and refused to ascertain and allow the deductions to which the owner was entitled and the amount due the contractor for extras, sustains the conclusion that such superintendent arbitrarily and unlawfully refused to perform his duty as a disinterested arbitrator between the parties and to issue a final certificate of substantial performance, and that such certificate was withheld by him to hinder, defraud, and delay the contractor in recovering what was due him.</p> <p>4. Deviations from the specifications of a building contract, which were approved by the owner’s superintendent in charge of the work and afterwards accepted by the parties in negotiations which resulted in a supplementary contract providing, among other things, for a new superintendent, cannot subsequently be made the basis of a claim of nonperformance.</p> <p>5. Omissions amounting to $31.25 in a building, the total contract price of which was $11,400, are too insignificant to furnish a basis for a claim of want of substantial performance.</p> <p>6. Where changes in a building are ordered by the superintendent, which necessarily delay the work, this necessarily extends the time limited for completion of the building.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oreen T. Williams, Circuit Judge.</p> <p>Tin's action was brought by the plaintiff against the defendant, a street railway company engaged in operating a street railway system on the streets in the city of Milwaukee. The complaint charges unlawful use of the streets under the provisions of defendant’s franchise, and especially sec. 5 thereof, which contains the following provision: “that said tracks and railways shall be used for no other purpose than to transport passengers and their ordinary baggage, and the cars or carriages used for that purpose shall be of the best style and class in use on such railways.”</p> <p>The complaint further alleges that no right has ever been granted to the defendant to operate cars on any of its tracks along the streets of the city of Milwaukee, except for carrying passengers; that during three years prior to the commencement of this action, at frequent but irregular intervals, the defendant ran trains upon its tracks in the city of Milwaukee solely to carry freight and heavy material, and that such trains so run were and are dangerous to persons upon the streets, and are run without authority of law; that on June 2, 1902, the plaintiff was injured by one of said freight cars so unlawfully operated on Sycamore street, one of the streets in said city of Milwaukee, and demands damages therefor. During the trial the plaintiff, by permission of the court, amended his complaint by inserting allegations of negligence •on the part of the defendant in addition to the allegation in the original complaint that the cars were unlawfully operated, and also alleging employment of the plaintiff. At the close of the plaintiff’s evidence a motion for nonsuit was granted and judgment ordered for the defendant. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: W. J. TueNee, Circuit Judge.</p> <p>Tbe order appealed from granted a new trial.</p> <p>they cited McKiver-gan v. Alexander & E. L. Co. 124 Wis. 60, 102 ]ST. W. 332; Gould v. Merrill B. & L. Go. 139 Wis. 433, 445, 121 U. W. 161; Milwaukee L., H. ■& T. Co. v. M. N. B. Co. 132 Wis. 313, 112 ET. W. 663; Chicago & N. W. B. Co. v. 0., A. & B. W. B. Co. 107 Wis. 192, 83 ET. W. 294; Murray Hill L. Co. v. Milwaukee L., H. & T. Co. 110 Wis. 555, 567, 86 ET. W. 199; Funk v. St. Paul City B. Co. 61 Minn. 435, 63 ET. W. 1099, 29 L. E. A. 208; State v. Duluth G. & W. Co. 76 Minn. 96, 78 ET. W. 1032; Luñdquist v. Duluth St. B. Co. 65 Minn. 387, 67 ET. W. 1006; Fallon v. West End St. B. Co. 171 Mass. 249, 50 K. E. 536; Scott v. Farmers’ & M. Nat. Bank, 97 Tex. 31, 75 S. W. 7, 16; Biley v. Galveston City B. Co. 13 Tex. Oiv. App. 247, 35 S. W. 826; Manhattan T. Co. v. Sioux City C. B. Co. 68 Eed. 82; Louisville & P. B. Co. v. Louisville City B. Co. 2 Duv. (Ky.) 175; Frei-day v. Sioux City B. T. Co. 92 Iowa, 191, 60 ET. W. 656; Fidelity L. & T. Co. v. Douglas, 104 Iowa, 532, 73 El. W. 1039; Sams v. St. L. é M. B. B. Co. 174 Mo. 53, 73 S. W. 686, 61 L. E. A. 475; Massillon B. Co. v. Cambria I. Co. 59 Ohio St. 179, 52 ET. E. 192; Gyger v. Philadelphia City P. B. Co. (Appeal of Montgomery) 136 Pa. St. 96, 20 Atl. 399.</p> <p>they cited Sparks v. Wis. Cent. B. Co. 139 Wis. 108, 120 ET. W. 858; Winkler v. Power_<& M. M. Co. 141 Wis. 244, 124 ET. W. 273; Boyce v. Wilbur L. Co. 119 Wis. 642, 97 El. W. 563; Benne v. U. S. L. Co. 107 Wis. 305, 83 ET. W. 473; Johnson v. St. Paul & W. C. Co. 126 Wis. 492, 105 ET. W. 1048; Ferren v. Old Colony B. Co. 143 Mass. 197, 9 ET. E. 608; Wood, Master & Servant, 794, § 403. On the questions of assumption of risk and contributory negligence: Citizens’ St. B. Co. v. Beed, 28 Ind. App. 629, 63 ET. E. 770; Narramore v. C., C., C. & St. L. B. Co. 96 Fed. 298; Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 ET. W. 573; Campshure v. StandardMfg. Co. 137 Wis. 155, 118 N. Wr. 633; Glary v. O., M. é St. P. B. Go. 141 Wis. 411, 123 N. W. 649. To the point that defendant was a “railroad company’7 and therefore, under sec. 1816, Stats. (Laws of 1907, ch. 254), assumption of risk was no defense, they cited, among other cases, Quackenbush v. Wis. ■& Minn. B. Go. 62 Wis. 411, 22 N. W. 519; Eolum v. Q., M. & St. P. B. Go. 80 Wis. 299, 50 N. W. 99; Schlemmer v. B.3 B. & P. B. Go. 205 U. S. 1, 27 Sup. Ct. 407; Milwaukee L., E. & T. Go. v. M. N. B. Co. 132 Wis. 313, 112 N. W. 663; Dinsmore v. B. & M. B. Go. 12 Wis. 649; Chicago é N. W. B. Go. v. MilwavJcee, B. & K. E. B. Go. 95 Wis. 561, 70 N. W. 678; Pierce v. Chicago & M. E. B. Go. 137 Wis. 550, 119 N. W. 297; Kiley v. G., M. & St. P. B. Go. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756; Chicago, M. & St. P. B. Co. v. Voel-ker3 129 Fed. 522; Blodgett v. Milwaukee E. B. ■& L. Go. 141 Wis. 329, 124 N. W. 246; Gibson v. Milwaukee L., E. & T. Co. 144 Wis. 140, 128 N. W. 877.</p>

TaReaht, Circuit Judge. Plaintiff brought this action to recover a balance alleged to be due on the purchase price of certain letters patent.

Williams, Circuit Judge. This action was brought by plaintiff to recover damages fof personal injuries caused by a rear-end collision on defendant’s railroad. The evidence disclosed the following facts: February 5, 1908, freight train No. 282 left Allis station, Milwaukee, where it was made up, at 1:50 a. m., bound for Chicago. It was composed of eighteen or twenty freight cars, an engine, and a caboose, and was in charge of an engineer, fireman, conductor, and two brakemen.

. Appeal from a judgment of the circuit court for Milwaukee county: Oeeeit T. Williams, Circuit Judge. Action to recover on contract.

J. TubNek, Circuit Judge. Tbe complaint in tbis action alleges tbe incorporation of tbe city of Milwaukee and tbe incorporation of tbe defendant, and alleges that tbe defendant is tbe successor and as-signee of various street railway companies wbicb bad operated street railways upon tbe streets of tbe city.

0. Ludwig, Circuit Judge. Iu this action A. G. Winter, Marsden Company, a corporation, American Milling Company, a corporation, and American Milling Company, a consolidated corporation, were named as defendants. A summons, notice, and affidavit for examination under sec. 4096, Stats.

Halsey, Circuit Judge. Albert E. Abel was an adopted son of John H. Ahel. The-latter died in 1901 leaving surviving his widow, Catharine B., this adopted son, and an adopted daughter, now Mrs. Adele Stewart.

0. Esohweilee, Circuit Judge. On April 19, 1910, tbe common council of tbe city of Milwaukee passed tbe following resolution: “Whereas, tbe city of Milwaukee is a city of tbe first class, “Eesolvcd, by tbe common council of tbe city of Milwaukee, tbat, pursuant to tbe power and authority conferred by chapter 297 of tbe Laws of Wisconsin for tbe year 1907, entitled 'An act providing for tbe office of commissioner of public works in all cities of the first class, whether…

C. Ludwig, Circuit Judge. The following are the main facts in the case so far as they relate to questions presented by this appeal. Further facts will be stated in the opinion, where they are discussed: One Richard Weaver was the owner of sis promissory notes executed by the firm of William Gerlach & Company, aggregating $15,744.34. In 1905 the firm was adjudged a bank-, rupt, and Weaver’s claim filed against the estate in the bankrupt court was allowed at the amount stated.

'Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge. Action to recover for damages, alleged to bave been caused by a negligently designed, constructed, or maintained sewer. This is the .claim of plaintiff: In June, 1893, it owned a warehouse and store building, corner of Fifteenth street and St. Paul avenue, in the city of Milwaukee, and had stored in the basement a large stock of merchandise, composed, in part, of sheet tin.

C. Esghweilee, Circuit Judge. This action was brought to recover for personal injuries alleged to have been sustained by plaintiff, a minor under fifteen years of age. There was a verdict and judgment for the plaintiff and defendant appealed.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halset, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.</p>

<p> Appeal: Review: Findings by jury: Benefit insurance: Payment of dues: Application for reinstatement: Signature. </p> <p>1. Findings t>y a jury will be disturbed on appeal only where there is no evidence to sustain them, or where the weight of evidence is against them and is so reinforced by all reasonable probabilities and inferences that it becomes overwhelming.</p> <p>2. In an action upon a benefit certificate which defendant claimed had become void because of nonpayment of dues, findings by the jury to the effect that the assured had seasonably paid the dues in question, and that an application for reinstatement purporting to be signed by the assured was not in fact signed by her, are sustained upon conflicting evidence.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: WaeeeN D. TakkaNt, Circuit Judge.</p> <p>This is a retrial of tbe case wbicb is reported in 141 Wis. 228, 124 N. W. 414. In tbeir essential features tbe facts on this appeal are tbe same as stated on tbe former appeal.</p> <p>Tbe special verdict in this case is as follows:</p> <p>“(1) Did Herman account to tbe Buckleys or Somers for tbe San Juan Mining Company, for tbe proceeds of tbe $2,500 note sold to Wight? A. Yes.</p> <p>•“(2) When Herman paid Wight for tbe said note, was such transaction on tbe part of Herman a purchase of it, or a payment of it as agent ? A. Payment as agent.</p> <p>“(3) At or about tbe time of the payment of tbe $500 by Charles Friend, did Herman assume tbe payment of said sum to said Charles Friend? A. Yes.”</p> <p>Upon tbe rendition of tbe verdict both parties moved for judgment on tbe verdict, and tbe plaintiff also moved, in tbe event of bis motion for judgment on tbe verdict being denied, that tbe verdict be set aside and a new trial granted. Both motions for judgment were denied, and tbe court entered an order setting aside tbe verdict and granting a new trial, “because tbe court disapproves of tbe verdict as against tbe weight of evidence and because it is inconsistent with itself.”</p> <p>This is an appeal from tbe order setting aside tbe verdict and granting a new trial.</p>

<p> Master and servant: Unsafe worlcing glace: Unguarded lever for starting machinery: Evidence: Sufficiency: Opinions: Qualifications of expert: Special verdict: Definiteness: Duplicity: Appeal: Barmless errors. </p> <p>1. A revolving drum was used for preparing hides in defendant’s-tannery, the power being applied or thrown off by means of a shifting lever which was about six feet above the floor and extended eighteen to twenty-four inches into a narrow passageway along which, under the lever, loads of hides were moved on trucks. The lever was sensitive and easily moved by objects coming in contact with it, and was unguarded. While plaintiff was engaged in removing hides from the drum it was started by a truck load of hides coming in contact with the lever, and plaintiff, whose head and arms were at the time in the drum, was injured. Held, upon the evidence, that the jury were warranted in finding that the location of the lever, in view of the width of the passageway and the height of the loads customarily carried on the trucks, rendered plaintiff’s working place unsafe.</p> <p>2. A machinist of fifteen years’ experience, familiar with the manner in which shifting levers of this kind are customarily placed in other manufacturing plants when the machinery to he started or stopped adjoins a passageway like the one in question, was competent, although he had never worked in a tannery, to testify as an expert that the lever in. question could he guarded, without affecting the operation of the machine, so as to protect it from being moved otherwise than hy the operator.</p> <p>3. It was error to permit an expert to state his opinion that without a guard for the lever the machinery in question was in a dangerous condition, hut upon the facts shown in this case the error could not have been prejudicial.</p> <p>4. A question in the special verdict, as to whether the shifting lever was “constructed in a reasonably safe manner, considering the nature of the place where used and the nature of the work required,” must have been understood by the jury as referring to the location or placing of the lever with reference to the passageway; and they could not have been misled by the use of the word “constructed” rather than “located.”</p> <p>5. The only litigated issue as to.defendant’s negligence being as to whether plaintiff’s working place was unsafe by reason of the location of the shifting lever, and the jury having found that it was unsafe, an affirmative answer to ¿he question, “Was the defendant guilty of any want of ordinary care which was the proximate cause of plaintiff’s injuries?” was a sufficiently specific finding of negligence, in the absence of any request for a more specific finding; and under such circumstances there was no prejudicial error in the question as being double.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. Tueeee, Circuit Judge.</p> <p>cited, in addition to Wisconsin cases, Kreigh v. Westinghouse, C., K. & Co. 214 U. S. 249, 256, 29 Sup. Ct. 619; Choctaw, 0. •& Q. B. R. Co. v. McDade, 191 U. S. 64, 66, 24 Sup. Ct. 24; Santa Fe Pac. R. Co. v. Holmes, 202 U. S. 438, 26 Sup. Ct. 676; Schminhey v. Sinclair & Co. 131 Iowa, 130, 114 N. W. 612; Stephens v. Hudson Valley K. Co. 69 Hun, 375; Freeman v. Glens Falls P. M. Co. 61 Hun, 125, 15 IST. Y. Supp. 657; Cullen v. Norton, 52 Hun., 9; .Blondín v. Oolitic Q. Co. 11 Ind. App. 395, 37 IST. E. 812; Rigsby v. Oil Well 8. Co. 115 Mo. App. 297, 91 S. W. 460; ■8. C. 130 Mo. App. 128, 108 S. W. 1128; Chicago H. & B. Co. v. Mueller, 203 Ill. 558, 68 1ST. E. 51; Fogarty v. St. BouisT. Co. 180 Mo. 490, 515, 79 S. W. 664; TJren v. Golden T. M. Co. 24 "Was!.. 261, 64 Pac. 174; Zinteh v. Stimson M. •Co. 9 Wash. 395, 37 Pac. 340; N. W. Fuel Co. v. Danielson, 57 Eed. 915; Sanborn v. Madera F. & T. Co. 70 Oal. 261,11 Pac. 710.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p>

M. Webb, Circuit Judge. This is an action at law to recover tbe balance due upon a contract for tbe purchase of certain lands in Wood county, Wisconsin.

<p>Appeal from a judgment of tbe circuit court for Marinette county: S. D. HastiNgs, Circuit Judge.</p>

D. HastiNGS, Circuit Judge. This is an appeal by Doxtater and wife from a judgment against the garnishee, in a garnishment proceeding ancillary to the main action brought by Chase against the Doxtaters upon a joint promissory note executed by them to Chase for $223.85. Judgment in the principal action-for the amount of the note and costs was duly rendered.

D. Hastings, Circuit Judge. This is an action to recover the damages resulting to the plaintiff through his automobile running into an open ditch on one of the highways of the defendant city of Green Bay. The intersection of Ninth street and Ridge road in the city of Green Bay is in a rural neighborhood near the city limits. Ninth street runs east and west and Ridge road north and south.

M. Webb, Judge. On October 21, 1909, plaintiff’s intestate was employed by the defendant company, at Ashland, as a locomotive engineer,, running an engine over the approach to its ore dock, which extends out into Ohequamegon Bay in a northerly direction. In the course of such employment he stopped his engine, alighted therefrom, and, in some manner undisclosed by the evidence, was precipitated into the water beneath, a distance of about sixty-eight feet, and lost his life.

<p> ’Negligence: Unguarded excavations left in street: Death, of child: Contributory negligence: Questions for jury: Appreciation of danger: Instructions to jury: References to evidence: Inadvertent omissions: Damages: Funeral expenses: Reducing excessive award: Appeal: Review. </p> <p>1. Defendant lighting company, after digging a number of.post holes in the street about five feet deep and twenty inches in diameter at the top, left them for a time unguarded, and plaintiff’s intestate, a girl between nine and ten years old, while playing about them fell into one of the holes and was killed. The street was considerably used, and children were likely to be passing. The hole in question was about two feet from the sidewalk, and the earth below the surface was of a nature likely to give way and cave in. Held, that the jury was warranted in finding defendant negligent.’</p> <p>2. Although the child had been admonished by young companions to keep away from the hole because of the danger of falling into it, it was nevertheless a question for the jury whether she was guilty of contributory negligence, especially in view of evidence from which the jury might have concluded that her fall was caused by the caving in of the earth under her feet and near the edge of the hole, of which danger she had no warning.</p> <p>S.Children as well as adults are bound to exercise ordinary care for their own safety to the-extent to which they may reasonably be expected un'der all the circumstances to know and appreciate the perils of personal injury.</p> <p>4. As to any given event a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development, and intelligence under the particular circumstances.</p> <p>5. Even when they know or ought reasonably to know the facts, young children are not, like adults, presumed to comprehend and appreciate the danger incident thereto.</p> <p>6. The foregoing rule, though more commonly invoked between master and servant, is applicable in any situation where the question arises whether a child exercised ordinary care for its own safety.</p> <p>7. The trial court may properly, in charging the jury, refer generally to features of the evidence, not giving particular prominence to any part so as to suggest the weight that should be given to it.</p> <p>S. An inadvertent omission, in such reference to the evidence, of any particular material feature thereof is not assignable as error unless the attention of the trial court was seasonably called to it. " ></p> <p>9.Funeral expenses are a proper part of the damages recoverable by a parent for death of a child caused by negligence.</p> <p>10. In cutting down as excessive the jury’s award of damages and compelling defendant to submit to the reduced amount at plaintiff’s option, care should be taken not to invade the constitutional right of trial by jury; and this may be done by fixing the optional amount at the minimum which the jury might rightfully allow on the evidence.</p> <p>11. An error of the trial court in failing to cut down sufficiently the jury’s award, thus allowing recovery of excessive damages, is not reviewable on appeal unless the question was properly saved for review by due exception.</p>

<p> Electric railways: 'Negligence: Speed: Signals at highway crossings: Positive and negative testimony: Questions for jury. </p> <p>1. In the absence of peculiar circumstances or particular conditions other than a highway crossing somewhat obscured by trees and buildings, a speed of fifty miles per hour on an electric in- ‘ terurhan railway in the open\country cannot be said to be illegal or negligent.</p> <p>2. Ordinary care would require a signal of the approach of a car to such a crossing.</p> <p>3. Testimony of a witness whose mind “was pretty well occupied” that he did not hear any whistle as an electric ear approached 1 a highway crossing was not sufficient to rehut the positive testimony of the motorman that he blew the whistle, or to carry the question of negligence in that respect to the jury.</p>

This action was brought to recover taxes levied upon personal property alleged to have been illegally assessed against; the and collected under protest. The action was. commenced in justice’s court, and on appeal tried in the circuit court without a jury, where judgment was entered dismissing the plaintiff’s complaint, from which this appeal was-taken.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Ohestee A. Eowleb, Judge.</p> <p>This is an action for specific performance under an instrument which the plaintiff contends is a contract for the sale of land and the defendant contends is a mere option to purchase within a specified time. The instrument is as follows :</p> <p>“This indenture, made this 26th day of March, 1906, by and between the Florence Investment Go. of the city and county of Milwaukee, in the state of Wisconsin, lessor, and August Baddatz of the same place, lessee.</p> <p>“Witnesseth, that the said lessor does hereby lease, demise, and let unto the said lessee the following described premises situated in the county of Milwaukee and state of Wisconsin, to wit': the premises No. 1208 Hayes avenue, also known as lot 21 in block 2 in W. B. Neeves’s subdivision, town of 'Greenfield. And any and all buildings, sheds, or other improvements which may be made or put thereon, shall form, be, and remain a part of said premises.</p> <p>“To hold for the term of forty-eight months from the first day of April, 1906, the said lessee yielding and paying therefor the monthly rent of fourteen (14) dollars in advance, to he paid on the first day of each and every month during said term, and payable at the office of Simon Heller, the first payment to be made on the first day of April, 1906. The said lessee does covenant and agree to pay the said rent at the times, at tbe place, and in tbe manner aforesaid promptly and without delay during tbe said term.</p> <p>“It is expressly agreed and understood by and between tbe parties hereto that it shall not be necessary for tbe said lessor or its agent to demand said rent at any other place other than tbe place above specified for tbe payment of tbe same.</p> <p>“It is mutually agreed and understood that said premises and every part thereof shall and must, during said term, be used only for tbe following business and purposes, and for no other business or purposes whatever, viz.: private dwelling for himself and bis family.</p> <p>“It is mutually agreed and understood that tbe said lessee shall make no alterations in said premises without tbe consent of said lessor first bad and obtained in writing, under penalty of forfeiture of this lease and damages.</p> <p>“It is mutually agreed and understood that tbe said lessee shall keep tbe said premises in as good repair as tbe same are in at tbe commencement of said term, reasonable use and wear thereof and damage by accidental fire or other accidents, not happening through the neglect of said lessee, his agents or servants, not excepted.</p> <p>“It is mutually agreed and understood that the said lessee shall keep the outside of said premises in good repair and whole, and also the said lessee shall keep in good repair the inside thereof and make all necessary repairs inside of said premises.</p> <p>“It is mutually agreed and understood that the said lessee shall keep the glass in the windows and doors in good repair and whole, damage by the elements not excepted.</p> <p>“It is mutually agreed and understood that during said term the said lessee shall pay all water rates assessed and levied against said premises for water used therein at the time such rates become due and payable.</p> <p>“It is mutually agreed and understood that the said lessee shall keep the water pipes, sewer pipes, gas pipes, drains, and plumbing in said premises in good repair.</p> <p>“It is mutually agreed and understood that the said lessee shall keep the said premises in a clean and tenantable condition.</p> <p>“It is mutually agreed and understood that the said lessee shall pay for the sprinkling of the streets in front of or around said premises and all assessments and taxes levied tberefor, by virtue of any charter provision of the town aforesaid, and also for all other taxes and assessments previous to January 15th, in every year, besides the fire insurance on said premises.</p> <p>“It is mutually agreed and understood that the said lessee shall obey all ordinances of said town in regard to the cleaning of streets, alleys, and sidewalks in front of or adjoining said premises.</p> <p>“It is mutually agreed and understood that the said lessee shall obey all lawful orders, rules, and regulations of the health officers, and all the health ordinances of said city or town.</p> <p>“It is mutually agreed and understood that the said lessor may, at reasonable and proper hours, enter and view said premises and make such alterations and repairs as may be necessary in lessor’s opinion.</p> <p>“The said lessee does covenant and agree not to assign this lease nor any other right or privilege herein contained nor let or underlet said premises or any part thereof without the consent of said lessor in writing first had and obtained.</p> <p>“In case said premises shall be partially damaged by fire the same shall be repaired as speedily as possible by and at the expense of said lessor, if the fire insurance money is sufficient for that purpose.</p> <p>“In case the damage is so extensive as to render the premises untenantable, the rent shall not cease until the same are repaired, nor at any other time.</p> <p>“If the premises be so damaged that the owner shall decide to rebuild, said term shall not cease, the premises shall be surrendered, and the rent paid the same as before.</p> <p>“It is mutually agreed and understood that the said lessor may, within one month next preceding the expiration of said term, place the usual notice of 'To let’ or 'Eor rent’ (and giving the address of lessor or its agent), upon the walls, doors, or windows of said premises, and the said notice shall remain thereon without hindrance or molestation, and be safely kept by lessee.</p> <p>“It is expressly agreed and understood that if the said lessee shall abandon or vacate said premises, or cease to regularly open, run, and use the premises for the purposes herein stated before the expiration of said term, the said lessor shall be at liberty, at its option, to relet the same, and if any rent due or unpaid, apply the money derived from such reletting to the rent due or to become due on this lease, and the said lessee shall remain liable for any deficiency and agrees to pay the same.</p> <p>“Provided always, and these presents are upon the. express condition, that if the said lessee does or shall neglect or fail to perform and observe any or either of the covenants or conditions herein contained, which on his part are to be performed, the said lessor lawfully may, immediately, or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into or upon said premises and repossess the same as of its former estate and expel the said lessee and those claiming under him and remove his and their effects (forcibly if necessary), and without being taken or deemed guilty in any manner of trespass, and upon entry as aforesaid this lease shall be determined, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant ; and such expulsion and removal, whether by the direct act of the lessor or its assigns or through the medium of legal proceedings for that purpose instituted, shall not affect the liability of said lessee or his representatives for the past-rent due or future rent to accrue under this lease, but the same shall continue as if such removal or expulsion had not taken place.</p> <p>“It is agreed that no promise, agreement, inducement, or representation of any kind was made or entered into by lessor or its agent except as expressly herein stated. Lessor shall not be liable for any injury, loss, or damage to person or property on or on account of said premises or for any other claim, in any event and under any circumstances whatever, whether it be for labor, outlays, or otherwise; and no alteration of or addition to these presents shall be valid unless it be in writing and subscribed by the lessor.</p> <p>“And the said lessee expressly agrees to quit and deliver up said premises to the said lessor peaceably and quietly, at the end of said term, by locking all windows and outside doors, and immediately thereafter delivering the keys thereof to-the president or secretary of said company personally at its office.</p> <p>“In consideration of one hundred (100) dollars and of said rents, the option is hereby given to lessee to purchase said premises on or before April 1, 1910, if he has up to said day complied with all the terms and conditions of this lease, and then only, upon payment. of twelve hundred fifteen 50-100 dollars, and in case lessee elects so to purchase, he to pay said $1,215.50 on said April 1, 1910, at the office of Simon Heller.</p> <p>“It is agreed that time is the essence of this option, and that said option shall never be construed to give said August Baddatz any equity of redemption, or any right, title, interest, or claim of any kind whatever in said premises, in case he fails to make either or any of said payments punctually within the time or times herein provided for, and to comply with any and all of the terms and conditions of the within lease; and it is further provided that his failure to make any or either of such payments punctually as herein stated, or to comply with any and all of the terms and conditions of the within lease, shall be held to be a complete surrender of all rights and privileges conferred by this option. Any mortgage on said premises shall be deducted from the last balance due on said, price.</p> <p>“Lessee shall have the right on said April 1, 1910, if said option is still valid and binding, to pay only $65.50 cash instead of said $1,215.50, and receive a land contract on said premises to be executed in duplicate by the parties hereto, whereby he is to pay $10 each on the first day of every month for eleven months, beginning May 1, 1910, and one thousand and forty (1,040) dollars on April 1, 1911, with five per cent, interest p. a. payable quarterly from April 1, 1910, on all unpaid sums. Said lessee also to pay all taxes, assessments, and fire insurance, during the life of said land contract.</p> <p>“And the covenants, stipulations, and agreements herein contained shall bind the parties mutually and their respective heirs, executors, administrators, representatives, and assigns.</p> <p>“In witness whereof, the said company has caused these presents to be signed by its secretary, and said lessee has hereunto set liis hand and seal the day and year first above written. “FloRence Investment Co.,</p> <p>“Simon Heller, Secretary.</p> <p>“August Raddatz. [Seal.]</p> <p>“Signed, sealed, and delivered in presence of:</p> <p>u_ _</p> <p>ec_ _j)</p> <p>The court made the following findings of fact and stated the following conclusions of law:</p> <p> “Findings of Fact. </p> <p>“1. That the defendant is and at all times mentioned herein has been a corporation duly existing under the laws of Wisconsin.</p> <p>“2. That on March 26, 1906, the parties executed the certain instrument in writing in letters and figures as set out by copies attached to the complaint and made a part thereof.</p> <p>“3. That shortly after the execution of said contract the plaintiff went into possession of the premises therein described, and has ever since occupied the same as a dwelling house, and that plaintiff entered into said contract with the purpose and intention of thereby and thereunder procuring the said premises in his own right as and for a home for himself and his family, as the defendant well knew.</p> <p>“4. That after so taking possession of said premises the plaintiff paid the $100 mentioned in the option clause of said instrument. That the plaintiff on December 18, 1908, paid to the defendant $7.20, the premium for insurance upon said premises up to August 3, 1911, which the defendant accepted. That the plaintiff made monthly payments of $14 during the entire four years from April 1, 1906, to April 1, 1910. That the plaintiff paid all taxes levied against said premises during all said term, and the insurance, prior as well as subsequent to said December 18, 1908. That the plaintiff kept the dwelling house on said premises in repair during said term and made some improvements thereon of a permanent nature, consisting of two storm-house entrances and stairs leading from the basement, a room which was occupied as a kitchen, to the floor above used as a living room and bed rooms.</p> <p>“5. That all said payments and improvements were made in and pursuant to a bona fide belief held hy the plaintiff that he had rights as a purchaser under said instrument, and that the defendant knew of the said belief and understanding of the plaintiff.</p> <p>“6. That the plaintiff’s monthly payments were not made upon the precise day upon which they were due, but the plaintiff was uniformly in default thereof, which defaults the defendant uniformly waived. That no ‘For rent’ sign was .posted up on said premises during the thirty days prior to April 1, 1910. That the defendant did not call at the premises to collect rent during the last month of the term of said contract, though it had customarily done so theretofore.</p> <p>“7. That prior to April 1, 1910, the plaintiff had arranged for a loan of a thousand dollars upon said premises and had $215.50 in addition to the monthly payments then due and payable saved up, all for the purpose of making full payment under said contract and procuring a deed of the said premises. That the plaintiff was able and prepared on said April 1st to pay all $14 monthly payments upon said premises and the $65 additional requisite to procuring a land contract’ on said premises, and he was then able to pay the-$1,215.50 required hy said contract for a deed of conveyance provided the defendant would accommodate him with an abstract of title to said premises, which the defendant had in its possession, to submit to the person with whom negotiations for said loan had been made. And the plaintiff intended and expected on said day and long prior thereto to make the payments required to he made on said day to secure the said premises or his rights as a purchaser thereof as the defendant well knew, hut did not appreciate of understand that said payments had to he made precisely and literally upon said day or his rights under said contract would cease and he forfeited by the strict letter of said contract.</p> <p>“8. That the plaintiff is an ignorant man, of low intelligence, and is unable to speak the English language, a day laborer of small earning power and without means other than his labor, and .made said payments at great cost and hardship to himself and his family, and that $12 per month is excessive as a mere rent charge for said premises.</p> <p>“9. That on April 2, 1910, the plaintiff through his wife paid to the defendant $43, being all sums due as tbe monthly payments under said contract, which sums were received by the defendant, and asked for a deed of said premises and an abstract of title to exhibit to secure the loan above mentioned, and then demanded a deed of conveyance; but that the defendant’s agent, on learning that the plaintiff’s wife did not have with her the entire purchase price of said land, refused said deed and abstract, and refused to convey said premises, and forcibly ejected the plaintiff’s wife from the defendant’s office.</p> <p>“10. That subsequent to said April 2d the defendant refused to convey the said premises to the plaintiff except on condition that the plaintiff pay some $80 in addition to the $1,215.50 required by said contract to be paid on April 1st for a deed; that on April 9, 1910, the plaintiff tendered the defendant $1,216.50 in lawful money of the United States, and demanded a conveyance of said premises, but the defendant refused to receive said money and refused to deliver a conveyance of said premises; that the said tender was about ninety cents short of the amount of $1,215.50 and interest thereon from April 1st to said date of tender, but was not refused for that reason, and the tender would have been refused had said shortage been included, and that the shortage was due to an error in computation of interest. That said $1,216.50 was paid by the plaintiff into court on the commencement of this action and is now in custody of the clerk thereof for the benefit of the defendant.</p> <p>“11. That the defendant was in no way injured or prejudiced by the failure of the plaintiff to pay said $1,215.50 on April 1st instead of April 2d, and the defendant might have had the same on said April 2d had he not refused to accept it at that time, nor was he injured or prejudiced by not having legal tender thereof made prior to said April 9th. And the said tender was made by the plaintiff within a reasonable time after the defendant’s said refusal to convey said premises under the circumstances in evidence.</p> <p> “Oonclusions of Law. </p> <p>“1. That the said instrument under the facts found constituted and was in force on April 1, 1910, as a contract of sale of lands as distinguished from a mere option to purchase. “2. Tbat tbe plaintiffs failure to produce and tender tbe $1,215.50 on April 1st instead of April 2d did not, under tbe facts found, forfeit tbe rights of tbe plaintiff under said contract, and tbat tbe said transaction of April 2d was, under said facts, a substantial and sufficient tender of performance by tbe plaintiff prerequisite to a right to a conveyance from the defendant, within tbe actual and true intent of tbe said instrument and tbe parties thereto.</p> <p>“3. Tbat to deny tbe plaintiff the' remedy of specific performance under tbe facts found would permit tbe transactions to work irreparable injury to tbe plaintiff and to operate as a fraud by tbe defendant against tbe plaintiff.</p> <p>“4. Tbat tbe plaintiff is in equity and good conscience entitled to a decree of specific performance against tbe defendant with costs of action.”</p> <p>Tbe court ordered judgment decreeing specific performance ; directing conveyance from tbe defendant to tbe plaintiff by warranty deed of tbe premises involved; tbat tbe money deposited by tbe plaintiff with tbe clerk of tbe court be paid to the defendant as tbe consideration for tbe conveyance; and tbat tbe plaintiff recover bis costs.</p> <p>This is an appeal from tbe judgment so ordered.</p>

Williams, Circuit Judge. This is an action to recover the balance claimed to be due on a promissory note for $700, signed by the defendant and held and owned by the plaintiff. One third of the face of the note was paid by a dividend in the bankruptcy proceedings against the defendant under a composition offer and settlement. The court awarded judgment for the balance claimed, basing the judgment on a promise of the defendant to pay such balance.

O. Esohweilee, Circuit Judge. This is an appeal from a judgment disallowing the claim of one Sister Pierre Klehr for the-sum of $4,500 and interest, hied against the estate of Johann Peter Klehr, deceased.The claim is upon a promissory note assigned to Sister Pierre Klehr by the deceased, Johann Peter Klehr. The case was submitted to the jury and the jury found that the note was not delivered to Sister Pierre Klehr with the intention of making a gift to her.

<p> 8treetrraUways: Injury to person on trade: Duty of motorman: Wanton or reckless conduct: Inadvertence. </p> <p>Upon discovering a person in a position of imminent peril on the track in front of an electric car the motorman was charged with the duty of averting such peril so far as lay in his power; and he cannot he held to have been free from wanton recklessness on the ground that, after such discovery, his failure to stop the car was due to inattention to duty and that his state of mind was that of inadvertence or neglect.</p>

Williams, Circuit Judge. Action brought by plaintiff, .as administrator, to recover ■damages íor tbe death of bis minor son, who was run over and killed by one of defendant’s cai^ Tbe defendant owned and operated a single street-oar track on the east side of what is called Howell road, which runs nearly north and south from the southern limits of the city of Milwaukee.

Williams,-Oircuit Judge. Action to recover compensation for a personal injury. Plaintiff was struck by a street car and injured. The accident happened in daytime on a street where there was little travel. He went from his place to a near-by shop to deliver a garment, intending to take the street car on his way back. There was a double-track line on the street. After doing his errand he lingered inside the shop, keeping watch for the car he desired to take.