Volume 152 — Wisconsin Reports

C. Higbee, Circuit Judge. Action to recover damages for personal injuries sustained in a collision witb defendant’s automobile. Tbe jury by a general verdict found for plaintiff and assessed bis damages at $135. From a judgment entered tbereon tbe defendant appealed.

0. Higbee, Circuit Judge. This is a personal injury action to recover damages for a serious injury to tbe plaintiff’s foot sustained while operating tbe slasher saws in tbe defendant’s sawmill. Tbe plaintiff was’ about twenty-two years of age at tbe time of tbe accident, October 8, 1910, and bad been engaged in work in and about sawmills for about five years,- and bad worked for tbe defendant since tbe previous March.

C. Higbee, Circuit Judge. Action to recover personal property. The pleadings presented the question of whether the title to such property was in plaintiff or in the defendant Rice or his trustee in bankruptcy. The case was submitted on tbe following, among others facts: Rice gave plaintiff a chattel mortgage on the property to secure payment of his indebtedness, evidenced by a promissory note mentioned therein. The mortgage was duly filed.

Appeals from judgments of the circuit court for Monroe county: Chestee A. Eowleb, Judge. Michael Weibel died August 8, 1877, a resident of the county of Gasconade, Missouri. Prior to taking up his residence in Missouri he had been a resident of Monroe county, Wisconsin. At the time he left Wisconsin and at the time of ■his death he was the owner of some 600 acres of land in Monroe county, Wisconsin.

C. Higbee, Circuit Judge. This is a controversy between plaintiff and defendant respecting the purchase of a certain tract of land. The defendant was in possession and claimed to have a contract with the owner of the land, through his agent, for the purchase of it, and that the plaintiff, with knowledge of defendant’s rights under the contract, purchased it and obtained a deed from the owner.

Tbe writ of error was sued out by tbe state pursuant to cb. 224, Laws of 1909, to review an order quashing an information and discharging tbe accused. cited State v. Gardiner, 80 Minn. 130, 92 N. W. 599; Cownselman v. Hitchcock,. 142 U. S. 547, 12 Sup. Ct. 195; Boyd v. TJ. S. 116 U. S. 616, 631, 6 Sup. Ct. 524; TJ. S. v. JEdgerton, 80 Fed. 374; TJ. S. v. Bell, 81 Fed. 830; People v. Gillette, 126 App. Div. 665, 111 N. Y. Supp. 133; People ex rel.

EbROR; to review a judgment of tbe municipal court of Milwaukee county: A. C. Baobus, Judge. Tbe plaintiff in error, hereinafter called tbe defendant,, was arrested on a complaint charging him with having obtained by means of false representations and false pretenses-tbe sum of $5,500 of the money and property of tbe Eirst National Bank of Milwaukee.

Eepoeted from the circuit court for Trempealeau county: E. C. Higbee, Circuit Judge. A question was certified to this court by the circuit court for the Sixth circuit pursuant to sec. 4721, Stats. (1898). The record transmitted to this court is as follows: “At the general September term, 1912, the defendant was convicted of burning certain warehouses in the village of Osseo, Trempealeau county, on the 27th day of November, 1911.

C. Ludwig, Circuit Judge. This-is an action to recover damages for personal injuries suffered by tbe plaintiff while employed by tbe defendant. Tbe plaintiff at tbe time of tbe injury, July 20, 1909, was a common laborer, earning about sixteen cents per bour. He was a Lithuanian, about fifty years of age, and bad been in this country for twenty-seven years. Tbe defendant conducts a steel plant and rolling mill at Bay View in the city of Milwaukee.

<p> Divorce: Judgment: Alimony or final division of estate? Annuity: Modification: Stipulation. </p> <p>1. Under see. 2369, Stats. (1898), a judgment in a divorce action decreeing a final division of the husband’s estate cannot be modified after the term at which it is entered; but a judgment for alimony may be modified at any time upon the application of either party.</p> <p>2. A statement or recital in the judgment that it is for a final division of the estate is not conclusive. The legal effect of the judgment, not the mere language used, must govern.</p> <p>3. A judgment that the husband, “his heirs, executors, and administrators,” shall pay to the wife, in monthly instalments, a certain sum per year during her life or until she shall remarry,, and that upon refusal or neglect to make such payments the wife may apply to the court for an order enforcing the same, ■ is a judgment for alimony, although it is expressly stated therein that “said payments are to be made and accepted as a full, absolute, and final division of the estate of the parties.”</p> <p>4. The provision for payment by heirs, executors, and administrators is a nullity, since alimony, although it may be made a charge upon specific real estate, is not a charge upon the husband’s general estate.</p> <p>5. A stipulation of the parties, upon which such judgment was in part based, that the yearly sum stated therein be accepted as a final division, is not a bar to the modification of the judgment.</p> <p>6. Under sec. 2364, Stats. (1898), when a wife is given a portion of her husband’s estate as a final division of his property, such portion should by the judgment be transferred and set over to her to be and become her separate estate, subject to her control and dominion, and capable of being disposed of by her by will or otherwise. The court may require such portion to be paid to her in any reasonable number of payments running through a series of years, but the number of payments and their time of commencement and termination must be fixed by the judgment, and they cannot rest upon any contingency or be made defeasible by remarriage.</p> <p>7. Assuming, but not deciding, that the court may as a final di- - vision of the property require the wife to take an annuity, such annuity must not be made to cease or be forfeited upon her remarriage.</p> <p>ICekwin, Siekeckek, and Timlin, JJ., dissent.</p>

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

<p>Appeal from a judgment of tbe circuit court for Monroe county: E. C. Higbee, Circuit Judge.</p> <p>Action by real-estate broker to recover $195 claimed to be tbe balance due for commission on tbe sale- of a farm. Tbe jury found for tbe defendant. Plaintiff appealed.</p>

<p> Statutes: Construction: Negotiable Instrument Law: Bills and notes: Collaterals applied to other purposes: Discharge of surety: Appeal: Mandate: Correction of clerical error below. </p> <p>•‘•l>;1Tir 'the construction of statutes words are not necessarily to be given their natural and exact meaning: if that would lead to injustice or absurdity a colloquial and inexact meaning may be preferred.</p> <p>2. It is proper in such a case to consider also the defects or failings in the existing law which the statute was expected to correct, and the general object which the lawmakers had in mind.</p> <p>8. The purpose of the Negotiable Instrument Law was not to make-radical changes in established general principles, but to wipe out differences in minor details in the laws of the various states by adopting in each case of difference that uniform rule which was best adapted to the needs of the business world.</p> <p>4. Under sub. 4a, sec. 1679 — 1, Stats, (providing that a person secondarily liable on a negotiable instrument is discharged “by giving up or applying to other purposes collateral security applicable to the debt, or, there being in the holder’s hands or within his control the means of complete or partial satisfaction, the same are applied to other purposes”), if the creditor gives up or applies to other purposes collateral security to an amount less than the debt, the surety is not discharged of his-entire liability, but pro tanto only.</p> <p>5. The mandate in this case directing judgment for the plaintiff is-amended so as to give opportunity in the court below for correction of a suggested clerical error as to the amount of collateral funds diverted by the plaintiff to purposes other than payment of the note upon which defendant was surety.</p> <p>Baenes, J., dissents.</p>

'Appeal from an order of the circuit court for La Crosse county: E. C. Higbbe, Circuit Judge. Action to recover on contract. The complaint is to this, effect: The plaintiff delivered to defendant, an attorney at law, practicing the profession thereof in La Crosse, Wisconsin, a promissory note for collection. July 28, 1892, he collected thereon $200.

C. Higbee, Circuit Judge. This is an appeal by tbe defendant from tbat portion of -a decree of divorce making a final division and distribution of tbe defendant’s property and awarding tbe plaintiff a monthly allowance for tbe support of two minor children. Tbe plaintiff was also allowed disbursements in tbe action to tbe amount of $43.68. Tbe parties to tbe action are Syrians. They were married on January 14, 1906.

<p> Wills: Probate: Testamentary capacity: Undue influence: Evidence: Weight and sufficiency. </p> <p>1. In a contest over the probate of a will wbicb gave the bulk of testator’s property to religious and charitable institutions, findings affirming the testamentary capacity of the testator and negativing undue influence are held to be sustained by the evidence.</p> <p>2. The very strong evidence in this case of the sound mental condition of the testator was not overcome by the facts that the will provided for the division of certain property between bis two brothers, naming them, "or their heirs,” and that one of said brothers had died long before the will was made. The testator may have used that language, with full knowledge that one of the brothers was dead, as apt and convenient lam guage for the disposition to the heirs of the deceased brother and to the living brother or his heirs.</p> <p>3. To show that the execution of a will was procured by undue influence it must appear that there was such influence exercised over the testator as to amount to moral coercion, which resulted in destroying his free will and independent action and constrained him to act against his will and independent wishes in disposing of his property.</p>

<p> Highways; Alteration: Jurisdiction: Fences: Injunction: Appeal: Bill of exceptions. </p> <p>1. A stipulation and a judgment entered pursuant thereto, narrowing a public highway from four to three rods, is void, the circuit court having no jurisdiction to make such alteration.</p> <p>2. A judgment supported by the pleadings and findings of fact will not be reversed on appeal in the absence of a bill of exceptions.</p>

'Appeal from a judgment of the circuit court for Wood county: James O’Neill, Judge. On December 23, 1910, plaintiff was in the employ of the defendant company as a laborer, and in the performance of his duty was required to operate a rip-saw which was used for the purpose of sawing boards into strips. While engaged in such work he was injured and this action was brought to recover damages therefor.

<p> Highways: Injuries from defective culvert: Evidence: Identity of troteen plante: Material issues: Instructions to jury: Special verdict: Form; Change during argument: Appeal: Harmless errors. </p> <p>1. In an action against a town for personal injuries sustained in driving over an alleged defective culvert, the evidence being sufficient to sustain the finding by the jury that the injury was caused by a defective plank in such culvert, it is immaterial whether or not a particular plank introduced in evidence was the one which caused the injury.</p> <p>2. The plaintiff having admitted upon the trial that no defect in the highway was claimed because of the previous breaking of a short piece from one end of the plank in question by a traction engine, it was not error to refuse instructions asked by defendant relative to the law applicable to steam engines crossing culverts.</p> <p>3. An instruction that public highways must be made and maintained in such condition that all persons traveling over the same with vehicles or otherwise may do so with reasonable safety, the traveler being in the exercise of ordinary care, was not erroneous because it failed to exclude traction engines in express terms, where it was given in connection with a question of the special verdict relating to travelers with teams, and where a previous instruction told the jury to disregard a defect caused by a traction engine.</p> <p>4. A change in the form of a special verdict which does not prejudice the rights of parties, such as the withdrawal of a superfluous question relating to a mere evidentiary fact, even after the argument has begun, is within the sound discretion of the court.</p> <p>5. Where an instruction upon the subject of future disability authorized the jury to consider such as it is reasonably certain “may” follow from the injuries complained of, but this was followed immediately by a correct statement of the rule, limiting' the recovery for future disability to such as the plaintiff is reasonably certain to suffer, the error must be deemed to have been corrected, especially in view of sec. 3072m, Stats.</p>

<p>Appeal from a judgment of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>This is an action in equity by the widow of one TTlIman' Hanson, deceased, to set aside a deed of eighty-seven acres of land, executed by her deceased husband to the defendant, March 3, 1904, on the ground that said conveyance was executed by the deceased and received by the defendant without consideration, and with the fraudulent intent of depriving the plaintiff of acquiring any interest in said lands by her marriage with the deceased, which took place March 15, 1904.</p> <p>It appeared on the trial that Hilman Hanson lived in St. Croix county for some time prior to March, 1904, near the land in question, and worked about forty acres thereof; that he had no other real estate; that he became intimate with the plaintiff, wbo lived in tbe same neighborhood, and that the plaintiff on February 7, 1904, gave birth to a child of which Hilman was the father; that the plaintiff commenced bastardy proceedings against Hilman in the latter part of February, 1904; that the sheriff followed Hilman to St. Paul, where the defendant (who had married Hilman’s sister) lived; that Hilman eluded the sheriff for a time at St. Paul, but was arrested a few days afterwards, and brought before the justice in St. Croix county, and the case adjourned for a week or ten days, at the end of which time the marriage took place. It also appears that the land was worth $2,000; that the deed was made at some time after the bastardy proceedings were commenced, and probably before the actual arrest. The defendant claims that he gave as consideration for the land a release of an $800 indebtedness which Hilman owed him and assumed a mortgage of $250 on the land. The defendant also claimed that he bought the land in good faith and had no knowledge that Hilman was about to be married or that he desired to deprive the plaintiff of her marital rights.</p> <p>The circuit court found that the deed was made without consideration (except the assumption and subsequent payment of the $250 mortgage), that it was made with the intent on the part of Hilman to deprive the plaintiff of her marital rights therein, and that said intent was known to the defendant. The court concluded that the deed wa§ inoperative so far as the plaintiff’s rights were concerned, and that her right' of dower attached to said lands as though said conveyance had not been made. From judgment in accordance with these conclusions the defendant appeals.</p>

<p> Highways:. Boundaries: Actual location: Fences: Presumptions: Retracing old survey: Dedication: Prescription. </p> <p>1. An attempted retracing of an original loosely made, uncertain, and contradictory survey of a highway, proceeding by courses and distances and in the absence of monuments, is insufficient to overcome the presumption that the road as actually located more than fifty years ago and used ever since is upon the correct route as originally laid out.</p> <p>2. If the highway was not legally laid out, the acquiescence of the abutting proprietors for more than thirty years in the use for that purpose of a strip four rods wide between fences amounted to a dedication by them.</p> <p>3. Where, pursuant to proceedings laying out a highway, a town opens one on a four-rod strip of land fenced out for that purpose and by continuous user gains a prescriptive right to such strip, such actually opened way supersedes the laid-out way so far as the two do not coincide.</p>

Eat SteveNS, Circuit Judge. The appellant, Franje M>. Wootton, is executor of the estate of Addie B. Morgan, and son of Mr. and Mrs. Eobert Woot-ton, Mrs. Wootton being a sister of Addie B. Morgan. Mrs. M. A. B. Jones was also a sister of Addie B. Morgan. Eob-ert Wootton died in 1896, Mrs. Eobert Wootton in 1905, Addie B. Morgan in 1909, and Mrs. M. A. B. Jones in-1910.

Appeaj, from a judgment of tbe circuit court for Sauk county: E. 0. Higbee, Judge-. They cited, among other authorities: Keener, Quasi-Oontracts, 377-380, and cases in notes; Perry v. Board of Missions, 102 N. Y. 99, 6 N. E. 116; 1 Jones, Liens, § 39; Cincinnati, S. &■ C. B. Co. v. Bensley, 51 Fed. 738, 742; Keilly v. Severson, 149 ¡Wis. 251, 138 N. W. 875.'

Ray SteveNS, Circuit Judge. This is an appeal from an order sustaining a demurrer to the amended complaint.

Ray SteveNs, Circuit Judge. This is an action to recover for damage to a carload of pianos wbicb were injured in transit from Milwaukee to Harvard, Illinois. Tbe pianos were bought by tbe plaintiff of tbe Waltham Piano Company of Milwaukee, and were loaded on tbe car and delivered by tbe last-named company to tbe defendant company October 26, 1911.

<p>Appeal from an. order of tbe circuit court for Dane county: A. H. Reid, Judge.</p>

<p>Appeal from an order of the circuit court for Sauk county: E. Rat Stevens, Circuit Judge.</p>

'Appeal from a judgment of the circuit court for Langlade county: JonN G-oodlakd, Circuit Judge. Plaintiff brought- this action to recover damages for personal injuries sustained on the 27th day of February, 1911, while he was working about defendants’ sawmill. He was then forty-two years old and was engaged in hauling away -lath-waste and other refuse.

EyaN, Judge. Action for damages for libeling plaintiff. Tbe complaint, in substance, is as follows: For a long time prior to tbe publication hereafter mentioned, plaintiff bad been superintendent of tbe asylum for chronic insane in Outa-gamie county, Wisconsin, under supervision of a board of trustees and direction of the county board.

Plaintiff seeks to recover damages for personal injuries alleged to bave been received by bim while in defendant’s employ by reason of defendant’s negligence in furnishing defective appliances and in failing to inspect the same. The •defendant is engaged in the business of manufacturing boilers and stacks and putting them in place. At the time of the accident, April 15, 1910, the plaintiff was forty-three years •of age.

Outa-gamie county: Thomas H. RyaN, Judge. Plaintiff seeks to recover damages for the breach of a contract to marry her. The defendant is a divorced man. He lived with three of his four children on his farm in the town of Orand Chute. The other child lived with his divorced wife. Defendant at the time of trial, October, 1911, was about forty-five years of age.

This is an action of ejectment involving the west half of the southwest quarter of section 19, township 37 north, of range 12 east, and the northwest quarter of the southwest quarter, and the southeast quarter of the southeast quarter, of section 5, township 32 north, of range 12 east. The defendant claims title under a tax deed issued on account of the tax of 1891, sale of 1892.

Action to recover compensation for services performed in loading logs and for a lien tbereon. Tbe lien claim was abandoned, as it was admitted that plaintiff performed no services on tbe logs upon wbicb tbe lien was sought. Tbe jury found for tbe plaintiff, and defendant appealed.

<p>Error to review an order of the circuit court for Ashland county: JonN E. Parish,- Circuit Judge.</p>

judgment of tbe circuit court for Milwaukee county: OujjeN T. Williaiis, Circuit Judge. Action to recover $3,500 principal and accrued interest claimed to be due on certificates of deposit. Tbe plaintiff’s claim was this: Tbe certificates were duly issued by defendant to plaintiff in 1906, payable to ber order. Sbe never transferred them nor authorized^ transfer thereof.

TabeaNT, Circuit Judge. Action to recover for the death of plaintiff’s intestate. There was evidence to this effect: May 27, 1909, the intestate, a married man, while working for defendant at $1.75 per day laying water mains, using a derrick to lower the sections into place, was so injured by a going to pieces of the appliance and fall of the parts that be died, August 23, 1909. He suffered between the time of accident and death.

<p>Appeal from an order of tbe circuit court for Milwaukee county: E. C. Esohweileb, Circuit Judge.</p> <p>Tbe state seeks in this action to recover certain moneys, “tbe clear.proceeds of all fines collected . . . for any breach of tbe penal laws” in Milwaukee. County between January 1, 1859, and January 1, 1909. It is alleged tbat tbe defendants were legally bound to pay these moneys to tbe state without demand, but tbat tbe defendants bave used these moneys in performing their legitimate municipal functions. Interest is also demanded on tbe various sums from the dates when it is alleged they became due to the state. Attached to the complaint is an itemized statement of the moneys alleged to be due the state. Tbe answers of tbe defendants deny tbe allegations of tbe complaint and set up various statutes of limitation in bar of tbe right of tbe state to recover certain of these moneys. Tbe state interposed demurrers to those parts of the answers setting up tbe statutes of limitation. This is ^an appeal from tbe order of tbe court overruling tbe demurrers in so far as tbe statutes of limitation pleaded by tbe defendants affect sums of money accruing to tbe state prior to February 1, 1899.</p> <p>They contended, inter alia, that every consideration of public policy forbids that any statute of limitations should be available as a bar to the recovery of any portion of the “school fund” which may have come to the hands of any person through the laches of those charged with its remission to the state treasury or otherwise, and the legislature is powerless, directly or indirectly, through the enactment of a statute of limitation or otherwise, to alienate or divert any portion of the fund to purposes other than those specifically mentioned in the constitution. State v. Oasey, 5 iWis. 318; Lynch v. The Economy, 27 Wis. 69; Dutton v. Fowler, 27 Wis. 427; State ex rel. Guenther u. Miles, 52. Wis. 448, 9 N. W. 403; State v. De Laño, 80 Wis. 259, 49 N. W. 808; State ex rel. Sweet v. Cunningham, 88 Wis. 81, 57 N. W. 1119; Emerson v. TIuss, 127 Wis. 215, 226, 106 N. W. 518; State ex rel. TLord v. St. Joseph Co. 90 Ind. 359; Rush Co. v. State ex rel. Hord, 103 Ind. 497, 3 N. E. 165; Putnam Co. v. State ex rel. Hord, 106 Ind. 531, 7 N. E. 254; Jachson Co. v. State ex rel. Hord, 106 Ind. 270, 6 N. E. 623; Howard Co. v. State ex rel. Michener, 120 Ind. 282, 22 N. E. 255. A subject beyond the power of the legislature to deal with, if included within the general terms of 'an act, will not be regarded as embraced therein when necessary to save the statute from otherwise successful attack. Peacock &. Co. v. Pratt, 121 Fed. 772; Butler Bros. S. Co. v. U. S. B. Co. 156 Fed. 1, 18, 19. While the action was brought “in the name of the state,” sec. 4229, Stats., was intended, we believe, to apply only to the state in its proprietary capacity and not to causes of action which might accrue to it as trustee of a constitutional trust, especially when the trust is one beyond legislative control. Coleman v. Peshtigo L. Co. 47 Wis. 180, 183, 2 N. W. Ill; Delta Co. v. Blackburn, 100 Tex. 51, 93 S. W. 419, 422. The action at bar is one “in favor of” the school children of the state, to whose exclusive benefit all fines collected will inure, rather than one “in favor of the state.” The only interest the state has in the controversy is that of parens patrice or trustee. Furthermore, the statute is in derogation of the sovereignty of the state and should be construed most favorably in respect thereto. The trust involved is, it would seem, of as high and sacred a character as that by virtue of which the state holds the beds of the navigable lakes within its confines, which this court has time and again held the legislature powerless to cede, and consequently that title thereto cannot be acquired by adverse possession. Menominee 'River L. Go. v. Seidl, '149 Wis. 316, 320, 135 N. W. 834; Rossmiller v. State, 114 Wis. 169, 187, 89 N. W. 839. It is also the doctrine of this state that “no mere nonuser, of any length of time, will operate as an abandonment of a public highway.” Reilly v. Racine, 51 Wis. 526, 529, 8 N. W. 417. And that “limitation or prescription cannot be set up against the public” in such eases. Scheuber v. Held, 47-Wis. 340’, 350, 2 N. W. 779; Childs v. Nelson, 69 Wis. 125, 33 N. W. 587; Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001. See Board of Trustees v. Auditor, 80 Ky. 336, 341, 342.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. TukNER, Circuit Judge.</p> <p>On June 19, 1911, John Ulicke was run down and killed by a passenger train on defendant’s railway in the city of Milwaukee. This action is brought by plaintiff as administrator of the estate of the deceased to recover damages sustained by reason of the hilling. The complaint alleges carelessness and negligence on the part of the defendant in failing to erect and maintain proper fences along its right of way at the point in question, in accordance with the provisions of sec. 1810, Stats. (1898). The testimony shows that on June 19, 1911, and for several years prior thereto, there had been a foot-path leading from what is known as-Webster Place down an embankment about seventeen feet deep and across the railroad tracks of the defendant, and that this pathway was used by men and children as a short cut to-near-by parks and to the lake. On the day of the accident the deceased and some of his boy companions had come from Webster Place down the embankment and were proceeding, southward along the railway tracks when deceased was struck by a south-bound passenger train. The answer of the defendant put in issue all the allegations of the complaint. Judgment was rendered in the civil court of Milwaukee-county in favor of the plaintiff, and this judgment was affirmed by the circuit court. Defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.</p> <p>Action at law under sec. 3180, Stats., to recover damages-caused by tbe construction by tbe city of Milwaukee in 1908-of a new bascule bridge across tbe Kinnickinnic river in said city, wbicb bridge, it is alleged, constitutes a nuisance in navigable waters, and to abate tbe same. Tbe Chicago &. Northwestern Railway Company and the Chicago, Milwaukee & St. Paul Railway Company were joined as parties defendant under tbe claim that .they jointly with tbe city placed and maintained certain piling in tbe river for tbe purpose, in part at least, of protecting tbe approaches of tbe bridges of’ tbe railway companies. Tbe Kinnickinnic river is navigable and runs nearly east and west in tbe city of Milwaukee.. Kinnickinnic avenue is a public street running north and south in said city and crosses tbe river. In 1908, pursuant ^to authority previously granted therefor by tbe federal gov-eminent and with its approval, the city built a new bascule bridge in place of an old swing bridge across Kinnickinnic river. The plaintiff owns and operates a wood and coal yard on the south bank of the river situated partly east and partly west of Kinnickinnic avenue. When the old bridge spanned the river the plaintiff found ready access through the south draw of the bridge and channel of the river to its wood-yard dock lying immediately west of the bridge. When the city built the new bascule bridge the south abutment thereof completely closed the south channel of. the river and prevented plaintiff from gaining access to that portion of its dock, lying immediately west of the abutment, through said south channel from the east, and the new pier of the Chicago & Northwestern Railway Company prevented plaintiff from gaining access to its dock, lying west of Kinnickinnic avenue, through the old south channel from the west. The railway companies placed and maintained a row of piling along the south border of the new channel beginning near the north end of the south abutment of the bascule bridge, running in a westerly direction between the city bridge and the bridge -of the Chicago, Milwaukee & St. Paul Railway Company and between the latter bridge and the bridge of the Chicago & Northwestern Railway Company, and for some distance west beyond said latter bridge. By means of these structures the plaintiff was deprived of access by water to its dock lying west of Kinnickinnic avenue. The diagram on page 250, in which the dotted lines show the old channels and the heavy black lines the new channel, will fully explain the situation.</p> <p>The defendant city of Milwaukee in its answer claimed that the new bascule bridge, together with its approaches, abutments, fenders, and all its appurtenances, was placed and located within the easterly and westerly boundaries of Kin-niekinnic avenue, where it crosses the river; that prior to its erection the plan thereof was approved by the secretary of war of the United States, as required by the federal statutes; and that, said bridge was constructed pursuant to such plan by the city as an improvement for the benefit of the public and to facilitate travel upon its streets, and especially Nin-nickinnie avenue.</p> <p> </p> <p>The jury found that the city had nothing to do with the placing or maintenance of the piling mentioned. They found further that the defendant the city of Milwaukee, by the manner in which it built the new bridge, impaired plaintiff’s access to its dock lying west of Kinnickinnie avenue and assessed plaintiff’s damages resulting therefrom in the sum of $500 for the period between September 1, 1908, and December 1, 1909. The court ordered judgment in favor of plaintiff for the amount of damages stated, and adjudged that the new bridge built by-the city was a nuisance, and adjudged further “that its abatement at the present time is unnecessary; but that the refusal to abate the same at the present time shall be without prejudice to the right of the plaintiff to bring such action or actions as it may be advised, for its damages by reason of the continuance of said nuisance, and also to abate the same if the city of Milwaukee shall fail or neglect to abate the same, or shall fail or neglect to acquire, either by purchase or condemnation, the rights of the plaintiff infringed by the continuance of said nuisance.”</p> <p>Erom such judgment the defendant city appealed.</p> <p>They contended, inter alia, that the right of access means access to the front of the property. Gould, Waters, § 153; Jenlcs v. Miller, 14 App. Div. 474, 43 N. Y. Supp. 927; Bond v. Wool, 107 N. O. 139, 12 S. E. 281; Clark v. Peckham, 10 R. I. 35. No length of user of a particular channel can ripen into a right. Thayer v. N. B. B. Co. 125 Mass. 253. Approval -of the plans by the proper federal authorities is conclusive that the bridge does not obstruct navigation. People ex rel. Murphy v. Kelly, 76 N. Y. 475; Miller v. New York, 109 U. S. 385, 3 Sup. Ct. 228; U. S. v. P. & L. B. B. Co. 26 Eed. 113; Pennsylvania v. Wheeling & B. B. Co. 18 How. (59 U. S.) 421; Clinton Bridge, 10 Wall. (77 TJ. S.) 454; Frost v. Washington do. E. Go. 96 Me. 76, 51 Atl. 806. The government may limit navigation to a prescribed channel. South Carolina v. Georgia> 93 F. S. 4; Frost v. Washington Co. E. Go., supra. A bridge constructed under proper federal authority is not a nuisance, no matter what its effect on navigation. Texarkana & Ft. S. E. Go. v. Parsons, 74 Fed. 408; Georgetown v. Alexandria G. Go. 12 Pet. 91; Pennsylvania E. Go. v. B. & N. T. E. Go. 37 Fed. 129; Gil-man v. Philadelphia, 3 Wall. 713; Cardwell v. American B. Go. 113 F. S. 205, 5 Sup. Ct. 423.</p> <p>They cited 1 Elliott, Roads & Streets (3d ed.) §§ 38, 39, 41, 44; Gould, Waters, § 135; 29 Cyc. 313; Cummings v. Chicago, 188 F. S. 410, 23 Sup. Ct. 472; Maxwell v. Ba/y Oity B. Go. 41 Mich. 453, 2 N. W. 639; S. G. 46 Mich. 278, 9 N. W. 410; Potter v. Menasha, 30 Wis. 492; Barnes v. Eacine, 4 Wis. 454; Sweeney v. G., M. & St. P. E. Go. 60 Wis. 60, 18 N. W. 756; Texarkana &■ Ft. S. E. Co. v. Parsons, 74 Fed. 408; Viebahn v. Grow Wing Go. Oomm’rs, 96 Minn. 276, 104 N. W. 1089; Ballance v. Peoria, 180 Ill. 29, 54 N. E. 428; Montgomery v. Portland, 190' U. S. 89, 103, 23 Sup. Ct. 735; North Shore B. & D. Go. v. Nicomen B„ Co. 212 U. S. 406, 412, 29 Sup'. Ct. 355; and other cases.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>This is an action for personal injuries. The plaintiff, a minor not quite eighteen years of age, suffered an accident by which he lost parts of both hands while putting in order a sausage-stuffing machine in the defendant’s packing works at Cudahy, Wisconsin, January 17, 1910. He had been in the defendant’s employ about four years, and he had operated the machine on which he was injured about a year and a half. The stuffing machine is a kind of pump which ejects the sausage meat through faucets at the bottom into the casings. There is a large can or bucket into which the prepared meat is put, and above the can a cylinder or steam chest in which a piston moves up and down, having a plunger on the lower end which just fits into the can or bucket just mentioned, and presses down on the meat, thus crowding it out of the faucets at the bottom of the can. The can tilts automatically to one side as the plunger reaches its highest elevation, in order that the meat may be conveniently placed in it. It returns to the upright position as the plunger descends. The piston and plunger are operated by a lever in front of the operator, which he moves up and down and which controls a slide valve by which live steam at seventy-five or eighty pounds pressure is let into the steam chest either above or below the piston head, as it is desired to lower or raise the plunger. This lever may be'placed at the middle, in which case no steam enters either above or below the piston, and the plunger remains stationary at any point where it is desired to place it. There is no automatic discharge of exhaust steam, nor can there be any such discharge into the exhaust pipe unless the lever is either raised or lowered sufficiently to allow steam to enter one side or the other of the steam chest, in which case an escape into the exhaust from the other side is likewise •opened.' There can be no entry of steam into either side when the lever is exactly at the middle point.</p> <p>The accident happened on Monday, just before the closing hour of the factory. The plaintiff had operated the machine successfully during the day, 'and had stopped it by placing the lever at the middle point in order to wash the machine-lie also took off and washed a certain spring or rim which was screwed on to the bottom of the plunger head and which, fitted the inside of the can. Having concluded the washing operations, he started to put the spring or rim upon the plunger head, in which operation he was assisted by Ed.. Schlueter, who worked by his side, tying sausages as they were stuffed. He first let down the plunger head several inches by the use of the lever and set the lever at the half way-point, so that no steam should enter either chamber. The-plunger head was then just above the top edge of the can or bucket and perhaps an inch and a half distant at the farthest point. The can had not yet returned entirely to its upright position, and hence the distance of its edge from the plunger was greater on one side than the other. The plaintiff claims-that just at this juncture the plunger head descended without warning and without the touching of the lever by any one-The fact is that in some way the plunger head was caused to-descend, and the plaintiff’s hands were caught between it and the edge of the can, cutting off a number of fingers from each hand.</p> <p>The plaintiff claims that the plunger descended because the steam leaked around the piston, by reason of defective and worn-out packing, and that the defendant was negligent in permitting the packing to become defective and in not warning him of the danger. The defendant denied that there was any defect in the packing, and claimed that it was a mechanical impossibility for the accident to have happened from leakage of steam. The jury by special verdict found negligence proximately causing the injury both in the condition of the packing and in the failure to warn; exculpated the plaintiff from contributory negligence; and assessed the plaintiff’s damages at $8,300. Judgment for the plaintiff was rendered on the verdict, and the defendant appeals.</p>

Appeals from an order and a judgment of tbe circuit court for Milwaukee county: W. J. TubNeb, Circuit Judge. The order was in a special proceeding commenced under ch. 300, Laws of 1899, as amended by ch. 342, Laws of 1899, for authority to make a ninety-nine year lease of interests created in certain real estate by the will of John Plaukinton, deceased, the legal title being vested in testamentary trustees and there being beneficiaries in esse and others in possibility.

<p>Appeal from a judgment of tbe circuit court for Bicbland county: Geoege ClehmeNtsoN, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Kay Stbveks, Circuit Judge.</p> <p>Action to recover for a personal injury. All conditions precedent to tbe right to maintain tbe action and to legal capacity to sue were pleaded and established by proof.</p> <p>Plaintiff was an infant of tbe age of six years. July 27, 1911, defendant, a street railway corporation, was lawfully engaged in stringing an electric feed wire on a city street where children, to its knowledge, were liable to be. A snatch block and rope were used with a team of horses to furnish power. The snatch-block pulley was inclosed so far as practicable. It was attached to a pole in the line the wire was to be stretched, some eighteen inches from the ground. The mode of operation was to attach one end of a long rope to tbe wire to be placed in position, tbe other end of tbe rope being attached to tbe draft bar to which tbe team was bitched after snch rope bad been properly threaded through the snatch block. The feed wire was wound on a spool, the loose end being the one attached to the rope which extended over cross-arms on poles some distance to the snatch block, then in due course to the draft bar. The spool was located some 700 feet from the pulley. Two men were stationed at the spool, another drove the team, and one man was stationed at the street crossing. The team, at the start, was near the pulley and as operations progressed, approached the spool. There was no guard stationed at the pulley or to watch out for children who might interfere with the rope during the progress of the work. The accident happened some 300 feet from plaintiff’s home. The plaintiff was not familiar with the appliance. The particular day was the first of the operations. Large numbers of children were accustomed to congregate in the street to play. While the boy was amusing himself with the rope near the snatch block, the team was started whereby his hand was drawn into the pulley and severely injured. The contrivance was liable to attract young children who might be playing in the street and cause them to take hold of the rope and defendant knew, or ought to have known, children were liable to be in the vicinity of the pulley while the work was in progress.</p> <p>The pleadings formed issues rendering admissible evidence as to all the matters suggested, and there was evidence as to each such matter, either direct or indirect. At the close thereof there was a motion for a directed verdict which was denied. The jury found, specially, (1st) defendant ought, in the exercise of ordinary care, to have known that the rope was calculated to attract children to play therewith; (2d) the pulley was not of the kind customarily used by ordinary careful persons; (3d) defendant did not conduct the operations as such work is ordinarily done; (4th) defendant failed to exercise ordinary care in tbe manner and place tbe pulley was attached to tbe pole, likewise in conducting tbe operations without any watchman to guard against persons being injured at tbe pulley; (5th) defendant’s want of ordinary care was tbe proximate cause of tbe injury; (6th) plaintiff was not guilty of any want of ordinary care, neither were bis parents so guilty; (7th) it will take $2,000 to compensate plaintiff for bis loss.</p> <p>On such verdict judgment was rendered for plaintiff, numerous exceptions being saved for consideration on appeal.</p> <p>They contended, inter alia/, that no inference of negligence can arise from defendant’s doing tbe work in the customary way. Bandeleow v. G., B. <&■ Q. B. Go. 136 Wis. 341, 117 N. W. 812; Prybilslci v. Northwestern G. Go. 98 Wis. 413, 74 N. W. 117; Boyce v. Wilbur L. Go. 119 Wis. 642, 97 N. W. 563; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689; West v. Bayfield M. Go. 144 Wis. 106, 128 N. W. 992; Boyle v. La Grasse Gity B. Go. 148 Wis. 280, 134 N. W. 364; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Gurnard v. Knapp-Stout &. Go. Go. 95 Wis. 482, 70’ N. W. 671. Tbe plaintiff upon tbe evidence was clearly guilty of contributory negligence. Byan v. La Crosse Gity B. Go. 108 Wis. 122, 83 N. W. 770; Wills v. Ashland L., P. & S. B. Go. 108 Wis. 255, 84 N. W. 998; Secard v. Bhinelander L. Go. 147 Wis. 614, 133 N. W. 45; Brvmlson v. 0. & N. W. B. Go. 144 Wis. 614, 129 N. W. 664; Tishacek it. Milwaukee E. B. L. Go. 110 Wis. 417, 85 N. W. 971; Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282; Indianapolis T. & T. Co. v. Croly (Ind.) 96 N. E. 973. Plaintiff was a tres-, passer and for that reason cannot recover. Friedman v. Snare & Triest Go. 71 N. J. Law, 605, 61 Atl. 401; Fitzgerald v. Bodgers, 55 App. Div. 298, 68 N. Y. Supp. 946; Gonlon v. Bailey, 58 Ill. App. 261; Jefferson v. Birmingham B. &■ E. Co. 116 Ala. 294, 22 South. 546, 38 L. R. A. 458; Thompson v. Cumberland T. & T. Co. 138 Ky. 109, 127 S. W. 531; Holbrook v. Aldrich, 168 Mass. 15, 46 N. E. 115; Cay v. Essex E. 8. B. Co. 159 Mass. 238, 34 N. E. 186; Briese v. Maechtle, 146 Wis. 89, 130 N. W. 893.</p> <p>They cited, among other cases, Douglas w. C., M. & 8t. P. B. Co. 100 Wis. 405, 76 N. W. 356; Larson v. Tobin, 43 Minn. 88, 44 N. W. 1078; Kelley v. Parher-Washington Co. 107 Mo. App. 490, 81 S. W. 631; Busse v. Bogers, 120 Wis. 443, 98 N. W. 219; Meibus v. Dodge, 38 Wis. 300; Compty v. Starke D. & D. Co. 129 Wis. 622, 109 N. W. 650; O’Lea/ry v. Michigan State T. Co. 146 Mich. 243, 109 N. W. 434; Spongier v. Williams, 67 Miss. 1, 6 South. 613; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257; Iamvrri v. Saginaw City G. Co. 148 Mich. 27, 111 N. W. 884; Lynch v. Nurdin, 1 Q. B. 29; Earl v. Crouch, 57 Hun, 586, 10 N. T. Supp. 882, affirmed 131 N. Y. 613, 30 N. E. 864; Jonasch v. Standard G. L. Co. 4 N. Y. Supp. 542; Thompson v. B. & O. B. Co. 218 Pa. St. 444, 67 Atl. 768, 19 L. R. A. 1162, 1173; Edgington v. Burlington, C. B. & N. B. Co. 116 Iowa, 410, 90 N. W. 95; West-erfield v. Levis Bros. 43 La. Ann. 63, 9 South. 52; Harper v. Kopp (Ky.) 73 S. W. 1127.</p>

<p> Railroads: Sleeping-cars: Regulation: Keeping upper berths closed: Statutes: Construction: Constitutional law: Police power: Interstate commerce: Taking property without compensation. </p> <p>1. Sleeping-car service incident to passenger traffic on railroads is a public service which, with the property devoted thereto,- may he regulated and controlled in promotion of the public welfare, subject to constitutional limitations.</p> <p>2. Ch. 272, Laws of 1911 (see. 1636p, Stats.), — providing that “whenever a person shall engage and occupy a lower berth in a sleeping-car and the upper berth in the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down but shall remain closed until engaged or occupied,” — is a general law, designed to contribute to the general welfare of all the people.</p> <p>3. The interests of the public being involved and the effect of the regulation in question being to contribute to the comfort and convenience of the traveling public and thereby to promote their health and the general welfare, such regulation is a proper exercise of the legislative power.</p> <p>4. The act may and should be construed as applicable to intrastate traffic only.</p> <p>5. So construed, it affects only indirectly and incidentally the interstate commerce carried on in sleeping-cars used for both intrastate and interstate business, and is not invalid on that ground, there being no specific federal regulations with which it conflicts, either in the Interstate Commerce Act or in the regulations made by the interstate commerce commission.</p> <p>6. The act does not deprive the owner of the sleeping-cars of his property without just compensation, nor is it repugnant to any other constitutional guaranty.</p>

J. ViNje, Circuit Judge. Tbis is. an action in equity brought by an alleged purchaser for value in due course of a negotiable promissory note to reform the same, and enforce it as reformed. The note was one of four joint and several negotiable notes given by the twelve defendants and one other person not sued, all of whom are farmers residing in Polk county, Wisconsin, in payment for a stallion sold to them August J, 1905.

<p>Appeal from an order of tbe circuit court for Barron county: Eeane A. Boss, Circuit Judge.</p> <p>This is an action for the specific performance of a contract for the sale of certain telephone lines and to enjoin the violation of the agreement.</p> <p>The complaint alleges facts as follows: The plaintiff is a telephone corporation operating several rural telephone lines radiating from the city of Cumberland. The defendant is also a telephone corporation operating several rural telephone lines radiating from the city of Cumberland, and in addition thereto is furnishing telephone service in .the city of Cumberland. Prior to May 6, 1909, some of the rural lines of the parties were parallel and served the same territory, and the plaintiff was contemplating tbe installation of an exchange to furnish telephone service in the city of Cumberland, in competition with.the defendant. To comply with the wishes of the merchants and business men of the city of Cumberland who desired to secure telephone connection with all the patrons of both companies by a single telephone in each business place, and who were willing to secure a reduction in the cost of telephone service to them by an increased rate for the single telephone, which, however, would be less than the combined rates for telephones from both companies, this contract was executed between the plaintiff and the defendant.</p> <p>The contract, executed May 6, 1909, provided that the contract should take effect after the state railroad commission had consented to the proposed raising of the rates. Upon this consent being given, the plaintiff was deemed to have purchased from the defendant those rural telephone lines belonging to the defendant which were parallel to lines of the plaintiff, and was to have an option to purchase the other rural lines. The plaintiff was to refrain from furnishing telephone service in the city of Cumberland to the residents of Cumberland, except as to one telephone already installed, and each party, for a period of seven years, was to furnish free connection to the patrons of the other. Defendant was to erect no new rural lines and was not to increase beyond twenty-five the number of telephones on any of the existing rural lines retained by it.</p> <p>The complaint also alleges that the conditions of the contract have been complied with by the plaintiff. It is alleged that, contrary to the provisions of the contract, the defendant has extended its lines outside the city, has added new wires to its rural lines in violation of the conditions of the contract, and that it refuses to comply with the option given by it to the plaintiff for the purchase of the defendant’s remaining rural lines. The plaintiff asks for specific performance of the option provisions of the contract and for injunction against violation of the contract in other respects.</p> <p>Tbis is an appeal from tbe order of tbe trial court overruling a demurrer to tbe complaint.</p>

<p>Appeal from a judgment of tbe circuit court for Polk county: EraNK A. Ross, Circuit Judge.</p> <p>Plaintiff brought an action in justice’s court on contract to recover for storage of bay left in bis barn. Tbe answer was in effect a general denial. Plaintiff recovered judgment. Defendant appealed to tbe circuit court. Tbe circuit court directed a verdict for plaintiff on all questions except as to-amount of damages and submitted that question to tbe jury. Tbe jury found damages $45, for wbicb sum and costs judgment was entered for plaintiff. Defendant appealed to tbis court.</p>

<p>Appeal from a judgment of the circuit court for Douglas county; EbaNK A. Ross, Circuit Judge.</p> <p>The appeal is from a judgment rendered upon a directed verdict.</p> <p>The plaintiff while in the employment of defendant as a teamster on March 6, 1911, sustained a personal injury in consequence of a wheel of defendant’s wagon giving way and breaking down, thus precipitating a load of lumber upon the plaintiff. The plaintiff was walking alongside the wagon driving a team which, with a lead team driven by another employee, was drawing the wagon in question. There was evidence tending to show that there was no unusual load upon the wagon, that the horses were moving slowly, and that the ground at the place where the wagon broke down was frozen and the snow and ice packed down, making a smooth, level road without ruts. This road was in the defendant’s lumber yard, and tbe plaintiff was engaged in banling tbe lumber in question from defendant’s mill to tbis lumber yard. Tbe defendant bad in use for tbis purpose several hundred of sucb wagons and tbe teamster did not use tbe same wagon continually. He took a pole and two front wheels, went to a certain place at tbe mill, and found a load ready for him upon a cart. He bitched bis two front wheels onto tbis loaded cart, making a four-wheeled vehicle, pulled tbe load out into tbe lumber yard, and left it there to be unloaded.' He detached tbis front part and went back to tbe mill with it for another load which be would find there ready upon another cart, and be repeated tbe operation. It was one of these back wheels that broke, causing tbe injury, and there is no evidence to show that tbe plaintiff bad prior to tbe time of bis injury used these back wheels. Immediately after plaintiff’s injury bis son went down to tbe yard to get some of tbe broken parts of tbe wheel and took out of tbe crushed mass three spokes, which was all that were entirely loose so that they could be easily removed. These spokes were produced on tbe trial and put in evidence and are before tbis court. They are old and broken. Two of them are sound, tough oak, and one contains an old crack and is somewhat unsound, and they are quite well covered with paint, but neither of them indicates that there existed any obvious defect in tbe wheel. Tbe plaintiff served notice upon defendant to produce and have at tbe trial to be offered in evidence tbe remainder of tbe broken wheel, but tbe defendant did not produce it. An experienced wagon maker as a witness for plaintiff on tbe trial examined these spokes and testified that one was a poor piece of timber rotted about five eighths of an inch deep in one place, and gave bis opinion that it must have been at least fifteen years in use in tbe wagon. Tbis five eighths of an inch must have been arrived at by taking tbe depth of an old crack at tbe junction of tbe spoke with tbe bub and not readily discoverable by ordinary inspection. Tbe defendant introduced testimony that about the end of each year they make an inspection of these wagons, count them up to see how many they have, and if any are broken they send those out of repair to the shop. They look them over to see whether they are liable to break down or need repairs. They also have a man to grease trucks when the mill is running, and if this man finds anything that is broken he is supposed to set it out. In addition to this yearly inspection, at any time the witness sees a break or thinks the wagon is going to break he tells them to set it out and take it to the shop. Tie does not mean to say that he makes a close inspection, simply looks at them, and if one is broken or ought to go to the blacksmith shop he •sends it down. They have a wagon maker whose duty it is to repair the broken wagons. Of the 350 wagons there are generally about 100 broken, and they operate with twelve or thirteen teams. At the close of the testimony the learned circuit court directed a verdict for defendant, apparently upon the ground that there was no negligence on the part of the defendant shown.</p>

On September 5, 1911, plaintiff was injured while in tbe employ of tbe defendant, and this action is brought to recover damages for such injury. Tbe defendant operates a dock at Superior, and on tbe day of tbe accident tbe plaintiff was working with other employees of tbe defendant unloading salt from tbe bold of a. boat by means of a hoisting apparatus and large iron buckets.

<p>Appeals from orders of tbe superior court of Douglas county: Chables Smith, Judge.</p> <p>Action for personal injuries. Tbe defendant tbe Great Northern Bailway Company demurred to tbe complaint on tbe ground that it did not state facts sufficient to constitute a cause of action against it. Plaintiff, wbo was in tbe employ of tbe railway company as a switchman, alleged be was injured January 19, 1912, by coming in contact witb some planks placed from one loading platform to another across a switch track in tbe yard of tbe defendant Webster Manufacturing Company while be was standing upon tbe foot-board of an engine in tbe performance of bis duty and without any negligence on bis part. Tbe material allegations of tbe complaint charging negligence as to tbe defendant Great Northern Railway Compa'tvy are:</p> <p>“That tbe defendant Great Northern Railway Company was careless and negligent in ordering, sending and directing plaintiff to work and go upon said switching track witb said locomotive engine while said obstruction and platform was maintained and extended across said track and without first ascertaining tbe existence of said obstruction upon said track and causing tbe same to be removed, and further careless and negligent in not discovering said obstruction upon said track and removing tbe same prior to tbe time plaintiff was injured, and in failing and neglecting to notify and warn plaintiff of the existence or probable existence of said or similar obstructions upon said switching track; and plaintiff further alleges that defendant Great Northern Railway Company knew, or in the exercise of ordinary care could hare known, of the condition of said switching track and of the obstruction thereon and planks across the same prior to the time plaintiff was injured, and were further careless and negligent in causing and allowing said obstructions to remain thereon and in failing to furnish and provide plaintiff with a reasonably safe place in which to work, and that said place of work in, around and about said switching- place at and prior to the time plaintiff was injured, to the knowledge and within reasonable means of knowledge of the defendant Great Northern Railway Company, was unsafe and highly dangerous for the doing and performing of the work which plaintiff was required to and was engaged in doing. Plaintiff further alleges upon information and belief that the engine crew of the defendant Great Northern Railway Company in charge of and operating the engine upon which he was standing and working at the time he was injured were careless and negligent in running and propelling said engine upon said switching track and against said obstruction and planks, and that had said engine crew exercised ordinary care in the premises it could, would and should have discovered said obstruction and stopped said engine before running against the same.”</p> <p>The Webster Manufacturing Company also demurred on the ground that the complaint failed to state' facts sufficient to constitute a cause of action against it. The complaint set forth that the defendant Webster Manufacturing Company was engaged in the manufacture of chairs and maintained upon its premises a sidetrack connected with the main line of the Great Northem Raihoay Company over which the cars of the latter were switched in and out in the shipment of its chairs to various points; that such sidetrack was maintained solely for the use of the Webster Manufacturing Company. It then alleged:</p> <p>“That it was the duty of the defendant Webster Manufacturing Company to have kept and maintained said switching track upon which the cars for and freight from its plant were to be stored and moved, free and clear of obstructions and in a reasonably safe condition for the employees of the defendant Great Northern Railway Company to use and work around, about and upon with locomotive engines and cars in the doing of the work and the handling of the cars for said defendant Webster Manufacturing Company, and to notify said Great Northern Railway Company and its employees of any obstructions thereon or thereabouts. That the defendant Webster Manufacturing Company negligently failed to keep said switching track free and clear of obstructions or reasonably safe for the employees of the defendant Great Northern Railway Company to work upon, around and about, but on the contrary, the defendant Webster Manufacturing Company, sometime prior to the time plaintiff was injured, carelessly and negligently placed, set and maintained said obstruction and planks across the said railroad track with the ends of said planks resting upon the platforms of said Webster Manufacturing Company's plant, and in such condition that to the knowledge and within reasonable means of knowledge of said defendant Webster Manufacturing Company said obstruction and planks were liable to and would cause injuries to the plaintiff or other employees of the Great Northern Railway Company who were or might be using said switching track in running and moving locomotive engines or cars thereon or for the purpose of handling or moving freight for said Webster Manufacturing Company; that said defendant Webster Manufacturing Company well knew that the employees of the defendant Great Northern Railway Company would necessarily use said switching track and pass- or contact with said obstruction in doing the work of handling or moving engines or cars on said track. That said defendant Webster Manufacturing Company well knew, and in the exercise of ordinary care would have known at and subsequent to the time of the placing of said obstruction and planks across said railroad track, that plaintiff or other employees of the defendant Great Northern Railway Company were liable to be using said tracks in running said locomotive engines or cars thereon at any time during the day or night, and that said defendant Webster Manufacturing Company was careless and negligent in failing to keep said switching track free and clear of obstructions and reasonably safe for defendant Great Northern Bailway Company's employees to work upon, and in placing, allowing and maintaining said planks and obstruction across said switching track, and in failing 'and neglecting to cause said planks to be removed therefrom prior to the time plaintiff was injured, and in instructing, ordering and directing the defendant Great Northern Baihuay Company to run into and upon said track without informing it or its employees of the obstruction or platform across said track, and in failing and neglecting to place a light or other means of warning of the existence of said obstruction in the vicinity thereof where the same could be seen by the said railway company’s employees who might work around or about or use said track.”</p> <p>The complaint also alleged that plaintiff</p> <p>“was at all times in the exercise of ordinary care and caution to avoid injury, and he did not in the least cause or contribute to any of his said injuries; that at and prior to the time he was injured he was entirely unfamiliar with The said switching track, plant and yard and that he had never worked or been in or upon the same prior to said time; that said planks and platform so extending across said railroad track were, at said time and place, white and covered with snow and frost, as was the roadbed and the surrounding locality, ■and so that plaintiff was unable to and could not distinguish the said obstruction from the snow-covered condition of the ground or roadbed at or about said point.”</p> <p>Each defendant separately appealed from an order ovex*-ruling its demurrer.</p> <p>cited Canadian N. B. Co. v. Walker, 172 Eed. 346, 24 L. R. A. N. s. 1020; Connors v. E., C. & N. B. Co. 92 Hun, 339, 36 N. Y. Supp. 926; Hubbard v. Central of Ga. B. Co. 131 Ga. 658, 63 S. E. 19, 19 L. R. A. N. s. 738; Sheridan v. Bige-low, 93 Wis. 426, 67 N. W. 732; Beinlee v. Bentley, 90 Wis. 457, 63 N. W. 1055.</p> <p>He cited Buswell, Pers. Inj. § 66; PLupfer v. Nat. D. Co. 114 Wis. 279, 90 N. W. 191; Barow-shi v. Schultz, 112 Wis. 415, 88 N. W. 236; Lehman v. Amsterdam C. Co. 146 Wis. 213, 131 N. W. 362; Cummings v. C. W. Nolle Co. 143 Wis. 175, 126 N. W. 664.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>Tbis is an action brought by tbe city of Superior under sec. 1210Z, Stats., to recover of tbe defendant certain special assessments levied against a part of tbe defendant’s right of way for street paving and construction of sidewalks. Tbe defendant owns in fee a fif-ty-foot strip of land running due east and west through the south half of certain blocks in the city of Superior upon which it operates its engines and cars, and this is the strip against which the special assessments in question were levied. The following drawing of one of the blocks will give a correct idea of the situation:</p> <p> </p> <p>The railroad property, which consists of the shaded strip upon the plat, was assessed $355.37 as benefits for the construction of a pavement upon Third street and was also assessed $62.20 for tbe construction of a cement sidewalk on the east side of John avenue across the strip. Judgment was rendered by the trial court for the plaintiff for both amounts, and the defendant appeals.</p>

Ross, Circuit Judge. Action for a personal injury. The case has been three times tried. The first trial resulted in a judgment of non-suit which was reversed on appeal. 139 Wis. 412,121 N. W. 170. The reversal was because of there being a fair basis in the evidence for a jury to find defendant guilty of want of ordinary care which proximately caused the injury and that defendant neither assumed the risk nor was guilty of contributory negligence.

<p>Appeal from a judgment and orders of tbe circuit court for Wasbbum county: EeaNK A. Ross, Circuit Judge.</p> <p>Tbe verified complaint in tbis action alleges tbat on January 6, 1911, tbe defendant seized and took into bis possession certain personal property belonging to tbe plaintiff of the value of $1,023; tbat at tbe time tbe plaintiff was indebted to tbe defendant in tbe sum of $290.25; and tbat there was then due tbe plaintiff tbe difference between tbe value of tbe property converted and tbe sum due tbe defendant, $732.75.</p> <p>Eor a second cause of action it is alleged tbat at tbe time tbe defendant seized and took into bis possession the property mentioned in tbe first cause of action tbe defendant claimed to have a chattel mortgage upon the same, but that he took and converted to his own use other personal property belonging to the plaintiff and not embraced in the mortgage, of the alleged value of $52.</p> <p>For a third cause of action it is alleged that on October 6, 1909, the plaintiff purchased'from the defendant certain personal property, together with the lease of a certain livery barn in the city of New Auburn and the right of a lease of the livery barn for a number of years. It is alleged that the defendant claimed that the rent for the livery bam was paid for two months from the time of sale and that the defendant promised to assign and deliver to the plaintiff the lease embraced in the sale. It is further alleged that the rent was not paid for the two months, that the plaintiff was compelled to pay $40 as the rent for these two months, and that the defendant has neglected and refused to make and deliver an assignment of the lease; that the plaintiff at the end of two months was compelled to vacate the bam; that she was unable to lease another barn in the city of New Auburn; and that the plaintiff by reason of defendant’s failure to assign the lease suffered damages in the sum of $500. Damages are demanded in the aggregate of these various sums, amounting to $1,324.15, and for her costs and disbursements.</p> <p>It appears that the summons and complaint were filed on May 1, 1911, that no defense was made, and that judgment on defendant’s default was awarded and signed by the clerk of the circuit court for Washburn county on that day. It also appears that the defendant had notice of the entry of the judgment on May 6, 1911.</p> <p>On June 6, 1911, on an order to show cause which had been served, the defendant moved to vacate the judgment. This motion was denied on the ground that the defendant, by not specifying that he appeared specially in moving to vacate the judgment, had appeared generally in the action and thus waived the alleged irregularity.</p> <p>On February 21, 1912, defendant made another motion to vacate tbe judgment and to be allowed to defend, which motion was based on a proposed verified answer and affidavits. This motion was denied on the ground that the motion had been unreasonably delayed.</p> <p>The answer and affidavits, on which this motion for vacating the judgment and for allowing the defendant to appear and defend were based, show that the summons served was not signed, that no copy of the complaint was served with the summons, that no place was specified where a copy of the complaint could be procured, that the summons was served on the defendant while he was in attendance on court in Washburn county, of which county he was not a resident, in an action wherein he was plaintiff and the plaintiff was defendant, that that action embraced the subject of the present action, that the defendant had taken into his possession the property which is mentioned in the first cause of action under a chattel mortgage mentioned in the second cause of action, that he took only such property as was covered by the mortgage, that the value of the property was fixed by the jury in that action, wherein he was the plaintiff, and that the property was sold, pursuant to the judgment in that case, for an amount which covered the amount due and the costs of the ■action, and that he was advised by his attorney that the summons served upon him in this action was invalid and for that reason he disregarded it.</p> <p>The defendant appeals from the judgment rendered against him and from the orders refusing to vacate the judgment and allowing him to defend.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: EbaNK A. Ross, Circuit Judge.</p> <p>This is an appeal by tbe defendant from a judgment of tbe circuit court in a personal injury action. Tbe action was brought to recover for personal injuries sustained by plaintiff May 5, 1911, by coming in contact with a freight engine at tbe intersection of tbe railroad track and Elm avenue in tbe city of Superior. Tbe negligence alleged is that tbe appellant used old, rotten, and splintered planks in its track where tbe same crossed said street and improperly placed and failed to keep tbe same in repair, in consequence of which large openings were left, and that tbe crossing over said street was unsafe, defective, dangerous, and unfit for public travel; that tbe train was run at a high and dangerous rate of speed without warning and carelessly and negligently operated and managed.</p> <p>Appellant admitted tbe injury, but denied negligence on its part and alleged negligence on tbe part of plaintiff.</p> <p>Tbe jury returned tbe following verdict:</p> <p>“(1) Did plaintiff on May 5, 1911, suffer injury to ber person as a result of being struck by a train on defendant’s track at tbe point where said track crosses Elm avenue in Superior? A. (by tbe court). Yes.</p> <p>“(2) Was defendant’s crossing at tbe time and place where tbe plaintiff claims to have been injured, insufficient for public use? A. Yes.</p> <p>“(3) If you answer question 2 'Yes,’ did tbe defendant have notice of such insufficiency as that by tbe exercise of ordinary care it should have remedied it before plaintiff was injured ? A. Yes.</p> <p>"(5) Was defendant guilty of any want of ordinary care in not discovering plaintiff and stopping tbe train in time to avoid tbe accident ? A. Yes.</p> <p>"(7) If you answer question 2 'Yes’ and question 5 'Yes,’ then were tbe insufficiency of the crossing, and want of ordinary care on defendant’s part in not discovering tbe plaintiff in time to avoid tbe accident, tbe proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(8) Was plaintiff guilty of any want of ordinary care in tbe premises which contributed to produce ber injury? A. No.</p> <p>''(9) What amount of money will reasonably compensate tbe plaintiff for ber injury? A. $1,500.”</p> <p>Tbe usual motions were made by appellant, which were denied and judgment entered in favor of tbe plaintiff and against tbe appellant, from which this appeal was taken.</p>

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

<p> Railroads: Injury to employee: Negligence of fellow-servants: Appeal: Double costs. </p> <p>1. Ch. 254, Laws of 1907 (sec. 1816, Stats.), — making every railroad company liable for injuries sustained by any employee thereof (except those working in shops or offices) while engaged in the line of his duty as such, caused by negligence of any other employee of the company, — is applicable to an injury sustained by an employee while engaged in unloading ties from a car.</p> <p>2. Said statute is not limited, in its application, to employees engaged in work which is subject to the peculiar hazards of railroad operation; nor is its validity dependent upon its being so limited.</p> <p>3. Double costs under sec. 2951, Stats., are not imposed in this case, although the demurrer to the complaint and the appeal from an order overruling it are clearly not well grounded.</p>

Ross, Circuit Judge. Plaintiff brought this action to recover damages alleged to have been caused by defendant’s breach of its agreement to supply him with a poultry car at Cavalier, North Dakota, on November J, 1910, to enable him to ship his poultry to market.

Eoss, Circuit Judge. Tbe action is for personal injuries. Tbe defendants are sued as joint tortfeasors. Tbe Northern Goal & Dock Company, hereinafter called tbe dock company, was a corporation owning and operating a coal dock in Superior, having large coal sheds on tbe water front where coal was received from vessels and loaded by chutes into freight cars, standing on a railway track at tbe rear of tbe sheds.

Appeals from a judgment of tbe circuit court for Wash-bum county: FiiaNK A. Ross, Circuit Judge. By an agreement dated March I, 1910, one George Hewitt sold to Vollmar & Below Go. all of certain varieties of “lumber to be manufactured by [him] during the season of 1910 at R.oesler’s mill near Ladysmith, Wis.,” at specified prices for the various varieties.

<p>Equity: Quieting title to land: Who may maintain action: Pleading: Adequate remedy at law: Waiver of objection: Title by estop-pel: Conveyance by corporation when title in its officers: Bankruptcy: Trustee’s title subject to equities: Bona fide purchaser: Refund of taxes paid.</p> <p>1. Sec. 3186, Stats., authorizing actions to quiet title to land by persons having the legal title, merely enlarges the equity rule; and one having an equitable title only may base his right of action upon such title, independent of the statute.</p> <p>2. Where, in an action to quiet title, the complaint alleged that plaintiff had the legal title, but in a counterclaim in the answer it was alleged that the legal title was in defendant, and plaintiff- thereupon replied setting up title by estoppel, which was established by the proofs, the pleadings were sufficient on plaintiff’s part to sustain a judgment in his favor.</p> <p>3. Independent of sec. 3186, Stats., an action in equity may be maintained to remove a cloud from title where plaintiff has no adequate remedy at law; and the objection that he has such a remedy is waived if, without raising that question by demurrer or answer, defendant goes to trial on the merits.</p> <p>4. Where the president and secretary of a corporation, holding the legal title to land in their own names, represented it to be the-land of the corporation and sold and conveyed it as such, by deed executed by them in the corporate name, to a purchaser who bought without an abstract of title, relying upon such representation, they are estopped from claiming the title as against such grantee, and so are all persons claiming under them with notice.</p> <p>5. A trustee in bankruptcy takes the property of the bankrupt charged with all claims, legal and equitable, against it, and subject to all infirmities in the bankrupt’s title, including es-toppels imposed upon it in his hands which are not invalid as to creditors.</p> <p>6. One who purchased from a trustee in bankruptcy land which the bankrupts held in their own names but which the public records showed they had conveyed as the property of a corporation by a deed signed by them as its officers, was chargeable with notice of the rights of the grantee in such deed and could not claim to be a bona fide purchaser.</p> <p>7. Under established rules of equity one who is not a purchaser in good faith of land is not entitled, in an action against him to quiet the title, to a refund of delinquent taxes paid by him on such land; nor does the provision of sec. 3186, Stats., that “judgment shall be rendered according to the rights of the parties,” authorize the granting of such relief.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: FraNK A. Boss, Circuit Judge.</p> <p>Tbe appeal is from a judgment of tbe circuit court rendered in a suit brought to redeem certain shares of stock held by tbe respondents 'as collateral security for a note of appellant for $5,000. Tbe judgment allowed tbe appellant to redeem upon payment of tbe face of tbe note and interest. Claiming to be entitled to greater relief, this appeal is brought.</p>

<p> Assault and battery: Justifiable acts: "What may be shown under general denial: Improper conduct of counsel. </p> <p>1. The touching of another does not constitute an assault and battery unless done in an angry, revengeful, rude, or insolent manner, so as to render the act unlawful.</p> <p>2. If, as defendant testified in this case, plaintiff was about to take some of his goods and upon being requested to desist she refused, he was justified in taking her by the hand and leading her out of his store, using no excessive force.</p> <p>3. Such acts of defendant would not constitute an assault, and might properly be shown under a general denial.</p> <p>4. Persistent efforts of counsel to inject into a case matter which the court has ruled out as being immaterial, irrelevant, and harmful, should be met by the trial judge with prompt and emphatic disapproval and with suitable admonition to the jury to disregard it.</p> <p>5. Such conduct on the part of counsel may, of itself, necessitate a reversal.</p>

<p> Married women: Separate estate: Delivery to husband: Gift or trust? Presumptions. </p> <p>Where a married woman delivers to her husband money belonging to her separate estate, with no agreement of any kind as to repayment thereof, there is no presumption that it was intended as a gift, and in the absence of any direct evidence of such intention he must be deemed to hold it in trust for her benefit.</p>

<p> Constitutional law: Classification of cities: Laws applicable to one class: Validity: Street improvements: Special assessments. </p> <p>1. Laws applicable to a single class of cities are “general laws” and “uniform in tbeir operation throughout the state,” within the meaning of sec. 32, art. IY, Const.; and it is immaterial that there is hut one city falling within the class legislated for.</p> <p>2. Such a law relating to one of the existing classes of cities need not itself make a legitimate classification. In enacting it the legislature must determine that it is proper and appropriate for the class affected; hut neither the legislature nor the courts need pass upon the question whether other classes might not with equal propriety be included. Language used in Smith v. Burlington, 129 Wis. 336, so far as it conflicts herewith, disapproved.</p> <p>3. Ch. 575, Laws of 1911 (sec. 959 — 35a, Stats.), relating to special assessments for street improvements and taking away all exemptions in cities of the second class, thus imposing upon property owners in such cities burdens more onerous than those imposed in cities of other classes, is valid, though it is apparent that no substantial reason exists for making the burdens greater in the one case than in some of the others.</p>

<p>Appeal from a judgment of tbe circuit court for Ozaukee county: MabtiN L. LuecK, Circuit Judge.</p> <p>Action to recover for a personal injury.</p> <p>According to the complaint plaintiff, a boy between fourteen and sixteen years of age, while at work for defendant for pay in its chair factory, February 2, 1911, assisting in operating and working around a planer, called also a “sticker” and wood-shaper machine, in an insufficiently lighted room and in the regular performance of his duties, was injured by his right hand being caught in the machine and drawn against knives forming a part thereof, by reason of which he lost the four fingers of such hand and was also injured otherwise, this being proximately ■ caused by employment of plaintiff contrary to sec. 1728®, Stats., as amended by ch. 338, Laws of 1909, and want of ordinary care otherwise on the part of defendant, such want of care in addition to the violation of the law stated being the maintenance of the machine in operation in an insufficiently lighted room, attended in part by persons of the age of plaintiff, such machinery having rapidly revolving uncovered and unguarded knives so located as to render likely such an accident as the one which occurred.</p> <p>There was an answer admitting that plaintiff was employed by defendant, denying that the employment was in violation of law, alleging that permission was duly obtained in respect to tbe matter and that it was in force at tbe time of tbe injury, putting in issue tbe allegations of negligence and those as to plaintiff being required to work about tbe machine, and pleading contributory negligence.</p> <p>Tbe jury found as follows: Plaintiff was injured while actually working removing manufactured articles from the machine as they fell therefrom. Defendant, did not negligently fail to furnish plaintiff a safe place to work. It negligently failed to properly guard the knives. • It negligently failed to sufficiently warn and instruct plaintiff as to the dangers incident to his employment. Defendant’s negligence was the proximate cause of the injury. Plaintiff was guilty of a want of ordinary care proximately contributing to the injury. He was damaged to the extent of $1,200. The trial court held that there was evidence to carry all such matters to the. jury.</p> <p>The operation in progress at the time of the injury was the shaping of chair legs and spindles. Plaintiff’s work consisted in taking the shaped articles away from the machine and piling them some twelve or fifteen feet away. In doing so, as there was evidence to indicate, he put his hand into an opening so as to come in contact with the knives on the lower planer head with substantially the consequences complained of. The trial court held that the employment of plaintiff to do the work he was engaged in was within the prohibition of sec. 1728a, as amended by ch. 338, Laws of 1909. Judgment was rendered on the verdict, regardless of that feature respecting contributory negligence upon the theory that, since plaintiff was employed in violation of the prohibitory statute, whether he was guilty of contributory negligence or not, was immaterial.</p> <p>To the point that contributory negligence is a defense even if the master violates a statutory duty, they cited 26 Cyc. 1230; 20 Am. & Eng. Ency. of Law (2d ed.) 151; Schneider v. C., M. & St P. E. Go. 99 Wis. 378, 75 N. W. 169; Ilolum v. G., M. S St. P. E. Go. 80 Wis. 299, 50' N. W. 99; West v. Bayfield M. Go. 144 Wis. 106, 128 N. W.. 992; Klait v. N. C. Foster L. Go. 97 Wis. 641, 73 N. W.. 563; Sharon v. Winnebago F. M. Go. 141 Wis. 185, 124 N.. W. 299; Norman v. YirginiarPocahontas O. Go. 68 W. Va.. 405, 69 S. E. 857, 31 L. R. A. N. s. 504; Queen v. Da/yton G. SI. Go. 95 Tenn. 458, 32 S. W. 460, 30'L. R. A. 82; Taylor v. Garew Mfg. Go. 143 Mass. 470, 10 N. E. 308; Darsam v. Kohlmann, 123 La. 164, 48 South. 781, 20 L. R. A. N. s.. 881; Beghold v. Auto B. Go. 149 Mich. 14, 112 N. W. 691.</p> <p>To the point that contributory negligence of a child employed contrary to statute is immaterial and not a defense, they cited, among other cases, Sharon v. Winnebago F. M. G.o. 141 Wis. 185, 124 N. W. 299; Koepp v. Nat. E. S S. Go. 151 Wis. 302, 139 N. W. 179; American G. S F. Go. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Strafford v. Eepublic I. S S. Go. 238 Ill. 371, 87 N. E. 358, 20 L. R. A. N. s. 876; Jefferson T. P. Go. v. Qrejeczyh, 125 Ill. App. 1, 9; Helmbacher F. S E. M. Go. v. Garrett, 119 Ill. App. 166; 67 Cent. Law Jour. 431 — 436; Lenahan v. Pittston G. M. Go. 218 Pa. St. 311, 67 Atl. 642, 12 L. R. A. N. s. 461; Stehle v. Jaeger A. M. Go. 220 Pa. St. 617, 69 Atl. 1116, 14 Am. & Eng. Ann. Cas. 122; Sullivan■ v. Hanover C. Go. 222 Pa. St. 40, 70 Atl. 909;, Stehle v. Jaeger A. M. Go. 225 Pa. St. 348, 74 Atl. 215, 133 Am. St. Rep. 884; Inland S. Go. v. Yedinak, 172 Ind. 423, 87 N. E. 229; Thomas Madden, Son S Go. v. Wilcox, 174 Ind. 657, 91 N. E. 933; Nairn v. Nat. B. Go. 120 Mo. App-144, 96 S. W. 679; Glucina v. F. H. Goss B. Go. 63 Wash. 401, 115 Pac. 843; Starrnes v. Albion Mfg. Go. 147 N. C-556, 61 S. E. 525, 17 L. R. A. N. s. 602; Ornamental I. S W. Go. v. Green, 108 Term. 161, 65 S. W. 399; Woolf v. Natir man Go. 128 Iowa, 261, 103 N. W. 785; Bromberg v. JEvans L. Go. 134 Iowa, 38, 111 N. W. 417, 13 Am. & Eng. Ann. Gas. 33.</p>

<p>Appeal from a judgment of the circuit court for Washington county: MaetiN L. Lueck, Circuit Judge.</p> <p>This is an appeal from that part of a judgment of the circuit court for Washington county which reverses an order of the Washington county court, under which certain personal property in the inventory of the administrator of the estate of Frederick Horn, deceased, was stricken therefrom on the ground that it was not the property of the deceased.</p>

<p>Appeal from a judgment of tbe circuit court for Brown county: S. D. HastiNgs, Circuit Judge.</p> <p>This action was brought to recover for personal injuries sustained by plaintiff while employed about a gasoline engine used by defendant in its business, by being caught on a setscrew which was attached to a revolving shaft, said shaft and set-screw being attached to and part of said engine. The injury occurred July 4, 1908, at the village of Mishicott, Wisconsin. Damages in the sum of $20,000 ‘are claimed in the complaint. The defendant admits that it was the owner and operator of the engine, that plaintiff was in its employ, and that he sustained injuries; and denies other allegations of the complaint.</p> <p>At the close of the plaintiff’s evidence defendant moved for nonsuit, which was denied, and at the close of all the evidence defendant moved for a directed verdict in its favor, which was denied. The jury returned the following verdict:</p> <p>“(1) Was the plaintiff caught by a set-screw which projected from an unguarded shaft of the engine, and thereby injured? A. Yes.</p> <p>“(2) Was said shaft with said projecting set-screw, so located as to be dangerous to any employee of said defendant whose duty it was to run said engine ? A. Yes.</p> <p>“(3) Did any want of ordinary care on the part of the plaintiff contribute to his injury ? A. No.</p> <p>“(4) What sum of money will reasonably compensate the plaintiff for his injury ? A. Eive thousand ($5,000).”</p> <p>The usual motions were made after verdict, which were denied and due exceptions taken to each and every denial of said motions. Judgment was rendered on the verdict in favor of the plaintiff, from which this appeal was taken.</p>

<p> Master and servant: Unsafe working place and appliances: Assumption of risk: Duty to warn: Obvious danger. </p> <p>Plaintiff, a teamster who had had eight or nine years’ experience in the woods, drawing and skidding saW’ logs, was working with a team and chain dislodging, rolling down, and hauling away cedar telegraph poles from a pile about sixteen feet high. Under the direction of defendant’s superintendent he had hooked the chain around the butts of two poles about six feet above the ground, for the purpose of dislodging them and throwing, down the pile. He was using a shorter chain and consequently had to stand nearer to the poles than usual. As the team pulled the poles from the pile, one of them was struck by other falling poles and thrown against him, causing injuries. Held,. that the danger was inherent in the work and was so plain and obvious to any person of ordinary intelligence that plaintiff assumed the risk and defendant owed to him no duty to warn, him thereof.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. HastiNgs, Circuit Judge.</p> <p>The plaintiff purchased from the defendant a power-driven tipping machine which was calculated to automatically place metal tips on the ends of the strands of horse fly-nets which plaintiff was engaged in manufacturing. The purchase price of the machine was paid in advance and the plaintiff endeavored for a considerable length of time to operate it, and finding that it would not work satisfactorily tendered the machine to the defendant and gave notice that he elected to rescind the contract to purchase. This action was brought to recover the purchase price. The court directed a verdict in favor of the defendant, and from the judgment entered in accordance with such ruling the plaintiff appeals. Other facts essential to an understanding of the points involved are set forth in the opinion.</p>

Plaintiff in error was, in due form, charged with having May 12, 1912, at Eranklin, Manitowoc county, Wisconsin, murdered John Eoliand. He entered a plea of not guilty and was tried and convicted of murder in the second degree. Judgment was rendered accordingly.

<p> Criminal law: Larceny: Circumstantial evidence. </p> <p>In a prosecution for larceny the evidence — tending to show, among other things, that defendant had passed the evening in the same saloon with the victim, who spent money lavishly and became badly intoxicated; that late in the evening the victim went upstairs following a woman with whom defendant roomed, and was in turn followed by defendant; that on the next day defendant was in possession of a pocketbook and several bills of large denomination corresponding to some of those stolen; and that he immediately left town, changed his name, and afterwards denied his identity — is held, though wholly circumstantial, to justify a verdict of guilty.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: E. C. Higbee, Circuit Judge.</p> <p>The complaint in this case alleges two causes of action. Eor the first cause of action it is alleged that in April, 1909, the plaintiffs and the defendant “entered into a verbal contract by which the plaintiffs agreed to furnish the iron concrete reinforcement for a barn, and to furnish the labor for the completion of a bam, on the premises of the defendant in Yernon county, for the sum of four thousand nine hundred and forty-sis ($4,946) dollars;” that prior to December 1, 1909, the plaintiffs duly performed all of the conditions of the contract to be performed by them, except the laying of a cement floor, the cost of which would not exceed $150; and that the defendant refused to permit the plaintiffs to finish the contract in this respect.</p> <p>Eor a second cause of action it is alleged that between June 1, 1909, and December 1, 1909, the plaintiffs “performed work and'labor on and about the construction and erection of a milk house and a foundation for a manure pit on the premises of the defendant, which said work 'and labor were reasonably worth the sum of two thousand six hundred and sixty-three dollars and seventy-eight cents ($2,663.78),” under an agreement witb the defendant that he would pay ‘‘what the same was reasonably worth, and it is further alleged that between the 21st day of June, 1909, and the 15th day of October,. 1909, the plaintiffs, at defendant’s instance and request, “furnished iron, cement, hardware and waterproofing to the amount of one hundred and forty-one dollars and two cents ($141.02).”</p> <p>The answer alleges that “the plaintiffs and defendant entered into a verbal contract by which the plaintiffs agreed to furnish the iron concrete reinforcement and to furnish the labor for the erection and proper completion of a barn, a milk and pump house, and a manure pit on the premises of the defendant in Vemon county, for the sum of $4,946.” It is admitted that the work which is unfinished would not exceed $150, and it is alleged that the defendant has not refused to allow the plaintiffs to complete this unfinished floor. It is ■also admitted that “plaintiffs furnished iron, cement, hardware and waterproofing to the amount of $141.02, for which defendant promised to pay as and for extras required on said building.” The other allegations of the complaint are denied.</p> <p>The undisputed evidence shows that in the fall of 1908 the defendant began the erection of the milk house and manure pit, that the plaintiffs performed work and furnished labor in mason and concrete work on these structures, and that the work was interrupted by the cold weather. In the spring of 1909 the defendant had a number of conferences with the plaintiffs with reference to the erection of the barn and turned over to them the plans of the barn for them to figure upon.</p> <p>The defendant testified that in the conferences with the plaintiffs he had fully and exactly informed the plaintiffs of the plans and specifications for the milk house and the manure pit and had shown them his drawings therefor, of which the plaintiffs admit they had a blue-print in June, 1909. The defendant testified that be bad several conferences with one of tbe plaintiffs in March and April, 1909, explained tbe plans about tbe milk and ice bouse, tbe manure pit, and tbe bam to bim, and asked bim tben wbat all tbe work would cost, and told tbe plaintiff, in response to bis inquiry, that it would be best for bim to figure on the finished job. Some time in May tbe plaintiff came to tbe defendant’s office and told tbe defendant tbe price of tbe work, including tbe iron in tbe horse barn, would be $4,946. Tbe plaintiffs claim and testified that this sum was for tbe work on tbe barn only, and did not include any of tbe work on tbe other structures.</p> <p>Tbe evidence tends to show that tbe contract of tbe plaintiffs was to furnish only labor for mixing and placing tbe concrete and doing tbe mason work, and, as incidental to tbe concrete work, perhaps, tbe construction of scaffolding, but tbe account presented by tbe plaintiffs shows that other work was performed by them, such as helping at threshing, carpenter work, etc., and that tbe defendant furnished them with some assistance in tbe performance of their concrete work. Tbe court allowed tbe estimates made by tbe plaintiffs as to tbe cost of tbe various structures, and evidence of tbe value of tbe work done by plaintiffs, to be introduced in evidence only in so far as they bore on tbe question of whether or not all of tbe work done was included in tbe one contract.</p> <p>Tbe jury returned tbe following verdict:</p> <p>“(1) Did tbe minds of tbe parties meet in respect to wbat work' was to be performed and material furnished for tbe sum of $4,946 ? A. Yes.</p> <p>“(2) If you answer question number 1 ‘Yes,’ then did tbe contract for tbe sum of $4,946 include tbe work and labor to be performed and material to be furnished by tbe plaintiffs on tbe milk bouse and manure pit? A. Yes.</p> <p>“(3) If you answer question number 1 ‘Yes,’ and question number 2 ‘No,’ tben wbat was tbe fair reasonable value of tbe labor performed and tbe iron work furnished by tbe plaintiffs upon the milk bouse and manure pit ? A. -.</p> <p>“(4) If you answer question number 1 ‘No/ then what was the fair reasonable value of the labor performed and the iron furnished by the plaintiffs upon the barn, milk house and manure pit ? A. -.”</p> <p>Motions for changing the answers to the questions of the verdict and to set aside the verdict and grant a new trial were denied. This is an appeal by the plaintiffs from the judgment in their favor for costs and the balance due on the account as determined by the court.</p>

Action to recover $735, claimed to have been illegally de-mancled for switching charges and paid by plaintiff to the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for use of defendant.

<p> Trial: Special verdict: Omissions: Winding by court presumed: Insurance against fire: Undertaking of agent to procure insurance: Liability thereon: Negligence: Consideration: Evidence: Appeal: Harmless error. </p> <p>1. Under sec. 2858m, Stats., the trial court will be presumed to have found in favor of the respondent upon a material issue of fact not covered by the special verdict, if there was evidence sufficient to support such a finding and tlie appellant tailed to ask the submission of pertinent questions.</p> <p>2. Although, in general, an insurance agent who is requested to write insurance and undertakes to do so may not assume any obligation further than to endeavor to write the policies in companies which he represents and, if they refuse to carry the risk, to promptly advise his client to that effect, yet under peculiar circumstances his obligations may be greater.</p> <p>3. Plaintiffs in this case had just purchased real estate, and defendant, a corporation doing a loan and insurance business, was making a mortgage loan thereon which was to be secured by insurance. Plaintiffs’ grantor held policies in mutual companies, which were to be assigned to plaintiffs, but defendant objected thereto and undertook to place $2,000 of insurance in good companies. In the meantime it secured assignments of the mutual policies to plaintiffs and intended to keep such insurance if it could not procure enough in old line companies. It was unable to place more than $1,000 in old line companies, but after it knew that fact it held the mutual policies for two weeks without taking any steps to have the assignments théreof validated by approval of the companies; at the end of whieh time the building was burned. Held, that defendant was liable for the loss resulting from its negligence in failing to keep the mutual insurance in force.</p> <p>4. The possibility that the mutual companies might not have approved the assignments of the policies because the property was mortgaged, did not excuse a failure to try, especially' as the policies were already in terms payable to a former mortgagee.</p> <p>5. The ruling out of this question put to one of defendant’s officers: “Did you make an effort to get insurance on the property?” was not prejudicial under the circumstances, especially as the same witness was permitted to state that $1,000 was all the old line insurance he could get.</p> <p>6. It appearing that the conveyance of the property to plaintiffs, the making of the loan, and the arrangement as to insurance were all parts of one entire transaction; that defendant received certain fees and commissions thereon; and that the-mortgage provided that the insurance should be in companies, approved by the defendant, these facts show a sufficient consideration for the defendant’s promise to place the insurance*</p>

<p>Appeal from a judgment of tbe circuit court for Price county: JohN K. Parish, Circuit Judge.</p>

N. Risjokd, Circuit Judge. Action to set aside taxes and assessments levied against plaintiffs real estate, described in tbe complaint, and to cancel tax certificates issued bn tbe tax sale thereof because bis real estate was assessed at much more than it was worth and much more than real estate of equal value owned by others in the same vicinity, and because the assessor intentionally omitted to assess a large amount of personal property of the value of more than $100,000.

<p>Appeal from a judgment of the circuit court for Bayfield county: JohN X. Pabish, Circuit Judge.</p> <p>This is an action by the beneficiary named in an accident insurance policy to recover for the accidental death of the assured, who was her husband. The policy was conditioned for the payment of $400 for death resulting from personal bodily injuries leaving visible, external marks, and effected solely by “external, violent, accidental, and involuntary means,” and further provided that there should be no liability in case the death occurred from “purposely self-inflicted injuries.” It appeared without dispute that the assured killed himself by hammering himself upon the head with a sledge hammer. The plaintiff claimed that the assured was insane at the time. A verdict for the plaintiff was returned by the jury, and from judgment thereon defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: G. N. Eisjoed, Circuit Judge.</p> <p>Action to recover, on an-$800 promissory note, of M. Zimmerman and D. Zimmerman, husband and wife, as makers, and C. M. Davison, August Matzke, and John Mueller as in-dorsers. Tbe note was dated November 18, 1907, and was made payable thirty days after date. M. Zimmerman answered that Ms wife did not execute the paper or authorize him to exeeiit© it in her behalf, — that the contract was wholly his own. He also answered that he was induced to give the paper for part of the purchase price for corporate stock, bought of plaintiff, relying upon his false and fraudulent representations as to the value thereof; that plaintiff represented the stock to be worth more than par, while in fact it was worthless, the corporation being hopelessly insolvent at the time of the transaction; that the whole purchase price was $4,000; $200 in cash and the balance in notes, of which that in suit is one; that before he discovered the fraud he had paid to plaintiff $1,500, which ought to have been applied upon the particular note, so far as necessary to discharge it.</p> <p>O. M. Davison answered to the effect that he indorsed the paper for accommodation only, and pursuant to an agreement that the first money paid by the makers should be applied thereon; that more than enough was so paid to fully discharge it, but instead of being so used plaintiff applied the same on the other note given for the stock. He further answered that the indorsement was made pursuant to an agreement that the note should only be used at the Glidden State Bank and be canceled with the first sufficient money paid by M. Zimmerman.</p> <p>The jury found that no false representations were made to M. Zimmerman as to the value of the corporate stock; that he had ample opportunity to inform himself in respect to the matter and did not rely on any statements made by plaintiff in buying the stock; that no agreement was made as to applying the first money he paid on the note, or as to the in-dorsement being made solely to enable plaintiff to use the note at the Glidden State Bank.</p> <p>Judgment was rendered against M. Zimmerman and O. M. Davison.</p>

<p> Negligence: Acts imminently dangerous: Sale of adulterated food: Injury to health: Liability of manufacturer: Privity of conr tract. </p> <p>1. One who wilfully or negligently commits an act imminently dangerous to human life, limbs, or health is liable to persons injured thereby, although he has no contractual relations with them.</p> <p>2. A complaint alleging that defendant, a meat packer, carelessly and negligently sold and delivered to a local dealer, to be by him sold at retail, “certain adulterated link sausage which, contained diseased, infected, putrid, decomposed, and poisonous animal matter” (bringing it within the condemnation o£ sec. 4601, Stats.); that defendant knew or ought to have known its condition; that a portion of such sausage sold by the retailer was given to.plaintiff to eat; and that he ate thereof and was thereby poisoned and injured in health, is held to state a cause of action.</p>

<p>Appeals from orders of tbe circuit court for Bayfield county: G. N. Risjobd, Circuit Judge.</p> <p>Tbe appeals are from orders overruling demurrers to tbe complaints.</p>

<p>Appeal from orders of the circuit court for Ashland county: G. N. Risjokd, Circuit Judge.</p> <p>This is a proceeding for examination under sec. 4096, Stats. The appeal is from two orders, one refusing to dismiss the action as to all the defendants except A. E. Apple-yard, and the other ordering examination of said A. E. Ap-pleyard under sec. 4096.</p> <p>Tbe action was commenced by tbe service of a summons June 28, 1912, upon tbe Ashland Light, Power & Street Railway Company, Ashland Power Company, Ironwood & Bessemer Railway & Light Company, A. E. Appleyard, William II. Burgess, Howard W. Lcrng, and George F. Merrill. On June 28, 1912, a subpoena, notice of examination, and affidavit of tbe plaintiff for examination were served upon tbe defendant A. E. Appleyard for bis examination before issue joined. On tbe day appointed for sucb examination, July 15, 1912, tbe defendants upon wbom service of tbe summons bad been made obtained an order staying proceedings for the examination of tbe defendant Appleyard, and directing tbe plaintiff to show cause July 20, 1912, why an order should not be entered dismissing the action as to tbe defendants served except A. E. Appleyard, and suppressing tbe notice and subpoena for bis examination and perpetually staying all proceedings for examination under sec. 4096 prior to pleading by plaintiff.</p> <p>Error is complained of on account of tbe making of these orders on tbe ground (1) that it appeared from tbe record that no cause of action existed against tbe defendants Ash-land Light, Power & Street Railway Compcmy and George F. Merrill, and (2) that it appeared that tbe plaintiff bad sufficient information to enable him to plead. Tbe affidavit of plaintiff for examination states:</p> <p>“That tbe defendants Ashland Light, Power & Street Railway Company, Hurley Water Company, Ashland Power Company, and Ironwood & Bessemer Railway & Light Company are corporations organized under tbe laws of tbe state of Wisconsin; and the defendants Gogebic Electric Company, Twin City General Electric Company, Ironwood Water Works Company, Gogebic Street Railway Company, Gogebic & Iron Counties Railway & Light Company are corporations organized under tbe laws of tbe state of Michigan.</p> <p>“That tbe general nature and object of the action is to compel tbe defendants Ashland Power Company, Ironwood & Bessemer Railway & Light Company, Gogebic Street Railway Company, and Gogebic & Iron Counties Railway & Light Company, and A. E. Appleyard, Manuel M. Reid, William H. Burgess, and Howard W. Lang, to transfer or cause to be transferred to plaintiff a one-third of the stock in the corporations last mentioned and in each of them, and one third of the profits which accrued upon the organization and consolidation of said corporations, and the construction and improvement of the equipment of each of them, and one third of the profits which accrued upon the sale or exchange of the stock and bonds in each of said corporations; that discovery is necessary and is sought by the examination of said defendants as to certain facts within their knowledge and not within plaintiff’s knowledge, in order to enable plaintiff to prepare his complaint herein.</p> <p>“That the defendant A. B. Appleyard planned the organization of said Ashland Power Gompany/Gogebic Street Railway Company, Gogebic & Iron Counties Railway & Light Company, and the Ironwood & Bessemer Railway <& Light Company, and outlined the scope and functions of each of them; that plaintiff took an active part in promoting the organization of all of said last named companies under an agreement with said A. B. Appleyard, and it was due chiefly to plaintiff’s services that the franchises were obtained for said companies ; that plaintiff’s said services were so performed with the knowledge, consent, and acquiescence of the then stockholders in said companies; that under said agreement plaintiff was to receive for his services a reasonable amount of the stock and bonds of each of said corporations, and of the profits which accrued from the consolidation thereof and the sale of stock and bonds.</p> <p>“That stock and bonds to the amount of several thousand dollars have been sold for said corporations by the defendants William H. Burgess and Howard W. Lang, under their firm name of Burgess, Lang & Company, since the month of February, 1908, the amount of such stock and bonds so sold or the commissions paid on such sales, or the proceeds of such sales, being unknown to plaintiff; that said A. E. Appleyard, as plaintiff is informed and verily believes, has exercised and now exercises complete dominion over all the corporations named, through his ownership of a majority of the stock of said companies, beld for him and in bis interest by third persons whose names are unknown to plaintiff, and said Apple-yard has so manipulated the records and books of account of each of said corporations as to conceal its pecuniary condition or the correct amount of moneys received and disbursed by it, and said defendants William H. Burgess and 'Howard W. Lang, as plaintiff believes, have been in privity with said Appleyard in thus attempting to conceal the true state of affairs, to the prejudice of bondholders and innocent stockholders in said corporations, and to the profit and benefit of said A. E. Appleyard, William H. Burgess, and Howard W. Lang.</p> <p>“That the points on which discovery is desired are as follows:</p> <p>“1. The amount of stock and bonds issued and sold by each of the above named corporations, respectively, since February, 1908, and the proceeds received and the disposition of such proceeds in each instance.</p> <p>“2. The commissions paid on sales of all of said stock and bonds.</p> <p>“3. The names of the stockholders and directors in each of said corporations at all times since February, 1908.</p> <p>“4. The actual cost of all assets purchased and the actual cost of all improvements and repairs made by each of sáid corporations since March 1, 1908.</p> <p>“5. The specific nature of the assets now owned by each of said corporations, the value thereof, and the amount of indebtedness of each of them.</p> <p>“6. Whether the defendant Montreal & Bad River Improvement Company is a corporation, a joint-stock company, or a copartnership, and if a corporation, under the laws of what state or country organized, the amount of its capital stock, the names of stockholders, and its business, and if a partnership, the names of the individual members.”</p>

<p>Appeal from a judgment of tbe circuit court for Oneida county: A. IL Reid, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Marathon county: A. H. Reid, Circuit Judge.</p> <p>Action to recover balance of purchase price for logs sold and delivered to the defendant. The complaint alleged that some time in January, 1910, the plaintiffs entered into an' oral contract with the defendant to sell to him a certain quantity of basswood, elm, birch, and pine logs, at certain agreed prices except as to elm, and to deliver the same at the sawmill of one George McNinch; that pursuant to such contract they delivered at said mill for the defendant 203,533 feet, which, under such alleged contract, amounted to $2,602.19; that due demand was made upon the defendant for the payment of this sum, but none thereof was paid except $1,421, and judgment was prayed for the balance of $1,175.19, with interest, and coste of the action.</p> <p>The defendant alleged that the terms of the oral contract were not as claimed by the plaintiffs; that he contracted to pay for the timber different prices from those which they claimed he agreed- to pay; that the total amount of various timber landed at the mill was only 141,655 feet; that the final delivery of the logs, after the same had been sawed into lumber at the mill, was agreed by the plaintiffs to be made at Elcho and not at the sawmill of McNinch; and that because of plaintiffs’ refusal to haul the lumber, manufactured from said logs, from the mill to Elcho, he was compelled to haul the same at an expense of $750, for which sum, by way of counterclaim, he demanded judgment against the plaintiffs.</p> <p>The jury returned the following special verdict: (1) that the contract between the plaintiffs and the defendant was that they should sell to him and make completed delivery at Mc-Ninch’s mill of their pine logs for the price of $15 per thousand, their birch logs for $13 per thousand, and their basswood logs for $14 per thousand, log scale; (2) that the quantity •in log scale of each of the following kinds of plaintiffs’ logs landed at McNinch’s mill was there sawed for the defendant, viz.: pine logs, 38,156 feet; birch logs, 14,276; basswood logs, 105,886; and elm logs, 18,957; (3) that the reasonable market value of elm logs of the grade of those delivered by plaintiffs to defendant while the same were at McNinch’s mill in March, 1910, was $9 per thousand; and (4) that it was not the contract between plaintiffs and defendant that the former should for the price of $16 per thousand feet log scale for pine, $14 per thousand feet log scale for birch, $15 per thousand feet log scale for basswood, seE their logs to defendant, haul the same to McNinch’s mill to be sawed, and take the lumber from the mill and deliver the ■ same to defendant at Elcho.</p> <p>The court gave the plaintiffs the option of a new trial or judgment for ten per cent, less than the amount of timber found by the jury. The plaintiffs accepted the latter, and judgment was entered upon the verdict as so amended. From such judgment the defendant appealed.</p>

<p> Appeal: Law of the case: Nonsuit: Affirmance: Second action: Same facts: New arguments: Master and servant: Injury: Unsafe working place. </p> <p>1. Although a judgment of nonsuit, voluntary or involuntary, is not a bar to another action upon the samé cause, yet where such judgment is affirmed on appeal the law as laid down in the opinion of this court becomes the law of the case, and conclusive upon the question of the legal effect of the evidence then presented, in all subsequent proceedings upon the same cause of action.</p> <p>2. Thus where, in an action by a servant for injuries received while engaged in the erection of a building, this court, upon appeal from a judgment of nonsuit, held that the evidence then presented showed neither negligence nor failure of duty on the part of the master, that decision forecloses all contentions of negligence which could then have been made on the same state of facts, whether they were in fact made or not; and this includes a contention as to the effect of a statute not then brought to the attention of the court or considered by it in making its decision.</p> <p>3. Where in the second action, brought after the nonsuit upon the same cause, the evidence which was .claimed to differentiate the case from the former one did not tend to show any breach of duty on the part of the master, and it appeared, as before, that whatever the condition was which caused plaintiff’s working place to he unsafe it was created by acts of co-employees in the process and prosecution of the construction of the building, the former decision was conclusive.</p>

<p> Municipal corporations: Injury from defective sidewalk: Negligence: Contributory negligence: Evidence: Special verdict: Jury: Talc-ing judge’s charge to jury room: Damages. </p> <p>1. In an action against a city for personal injuries sustained in a fall upon a sidewalk, the evidence is held to-sustain findings by the jury to the effect that the sidewalk was defective and out of repair in that the outer edge was six inches higher than the inner edge and that'a slippery ridge of ice and snow three inches thick had existed thereon near the outer edge for three weeks immediately preceding the accident.</p> <p>2. Upon the evidence in such case — showing, among other things, that the walk was extensively used by the public and had been so used for a considerable time while in said condition; that a portion of it sufficiently wide for pedestrians to use was clear of snow and ice; and that plaintiff was using it in the accustomed way, when she met another traveler, necessarily stepped aside, and was thus brought upon the icy portion — it is helcL that she was not guilty of contributory negligence as matter of law, even though she may have known the condition of this walk and that the walk on the other side of the street was safe.</p> <p>3. Refusal to submit in the special verdict a question as to whether or not anything diverted plaintiff’s attention at the time she fell was not error, that matter being necessarily embraced in the question submitted as to her contributory negligence.</p> <p>4. It is not prejudicial error to permit the jury to take the written charge with them into the jury room.</p> <p>5. Where plaintiff suffered a partial dislocation of her hip joint, a fracture of the neck of the femur, and a permanent shortening of the leg of about an inch; was confined to her bed for many weeks; had to use crutches for more than a year thereafter; was unable to perform her accustomed labor except a part of her household duties; and suffered pain in a degree usually attending such injuries, an award of §2,750 was not excessive and should not be disturbed.</p>

Eowleb, Circuit Judge. This action was brought to recover on a promissory note made by the defendant, payable to the order of a corporation known as the Great Lakes Portland Cement Company, at the State Bank at St. Cloud, Wisconsin.

<p>Appeal from a judgment of tbe circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>On November 9, 1909, tbe defendant herein entered into-a contract with tbe city of Portage for tbe construction of a system of sewers in said city, agreeing to furnish all labor and material therefor; and on November 16, 1909, tbe defendant made a contract with plaintiff for tbe purchase of the sewer pipe for said sewers. The work was commenced in the autumn of 1909, was resumed in the spring, and was continued until some time in October, 1910, when defendant abandoned it and the city declared the contract with it forfeited. At that time defendant had on hand a large quantity of material bought from the plaintiff and not paid for. This action was brought to recover the unpaid balance, and: the pipe then on the ground and other material owned by defendant were attached in November, 1910'. Other facts are stated in the opinion. The appeal is from a judgment in favor of the defendant.</p>

<p> Bankruptcy: Judgment against bankrupt, how far void: Enforcement against sureties: Statute construed. </p> <p>Under sec. 67 £ of the Bankruptcy Act — providing that “all levies, judgments, attachments or other liens” obtained against an insolvent within four months prior to the filing of a petition in bankruptcy “shall he deemed null and void in case he is adjudged a bankrupt,” etc. — it is not the judgment itself, hut only the lien or preference created thereby, that is void, the purpose of such provision being simply to prevent the judgment creditor from obtaining any advantage over other creditors in the distribution of the bankrupt’s estate; and the judgment creditor may, nevertheless, recover in an action against the surety upon a bond to pay the judgment (whose liability depends upon the validity of the judgment), where such action in no way affects other creditors of the bankrupt.</p>

<p>Appeal from a judgment of the circuit court for Eond du Lae county: Ci-iestee, A. Eowlee, Circuit Judge.</p> <p>The plaintiff as administratrix of the estate of Leslie Mon-rean, deceased, seeks to recover damages for the death of her infant son, Leslie, alleged to have been wrongfully and negligently caused hy the defendant. The deceased was a boy seventeen months old at the time of his death. He was left by his mother sitting in the kitchen on a child’s highchair, with the table down or in front of him, eating a bunch of grapes, while she stepped across the street to buy a can of salmon for supper. Plaintiffs brother, Mrs. Barry, and Mr. Pixley were in the kitchen with the boy when plaintiff left for the store. The accident occurred about a quarter past 6 in the afternoon of October 13, 1910. The Monrean residence fronts upon West Scott street, along which the defendant’s street railway runs. About three minutes after plaintiff left the house and as she was returning she was attracted by the stoppage of defendant’s street car nearly in front of her residence and learned that her son was run over. He was first seen by the motorman when he was about two feet from the south rail of the street-car track and when the car was about fifteen feet from him. The place of the accident was upon West Scott street, Eond du Lac, about sixty feet west of its intersection with Doty street. The car was running east. The track was located on the Monrean, or south, side of the street, and its south rail was about twenty feet from the’ south sidewalk, and the northerly rail about sixty feet from the north sidewalk. That part of the street south of the track was not used by teams and cars, and weeds to the height of nearly a foot had grown up during the summer. The street was practically level. The Monreans had lived in the house they then occupied about two years and a half and knew that cars frequently passed.</p> <p>The jury found (1) that the motorman did not use ordinary care in not dropping the fender of the car on seeing the child; (2) that such want of ordinary care was the proximate cause of the death of the child; (3) that the motorman did not use ordinary care in looking ahead on approaching the place of the accident; (4) that such want of ordinary care was the proximate cause of the child’s death; (5) that the mother was free from contributory negligence; and (6) damages in the sum of $800.</p> <p>Defendant’s motions to change certain answers to the questions of the verdict, and for judgment on the verdict as amended, and to set aside the verdict and for a new trial, were each, severally denied, and from a judgment for tbe plaintiff entered on tbe verdict tbe defendant appealed.</p> <p>cited Barrington v. B., A. & P. B. Co. 37 Mont 169, 95 Pac. 8; Hartfield v. Boyer, 21 Wend. 615; Prendegast v. N. Y. C. B. Co. 58 N. Y. 652; Albert v. Albany B. Co. 5 App. Div. 544, 39 N. Y. Supp. 430, affirmed 154 N. Y. 780, 49 N. E. 1093; Jeffersonville, M. & I. B. Co. v. Bowen, 49 Ind. 154; Wright v. M. & M. B. Co. 4 Allen, 283; Gibbons v. Williams, 135 Mass. 333; Holt v. 8. P. B. Co. 4 Idaho, 443, 40 Pac. 56; St. Louis, I. M. & 8. B. Co. v. Freeman, 36 Ark. 41; Del Bossi v. Cooney, 208 Pa. St. 233, 57 Atl. 514; Alabama G. 8. B. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; Grant v. Fitchburg, 160 Mass. 16, 35 N. E. 84; Cotter v. L. & B. B. Co. 180 Mass. 145, 61 N. E. 818; Apsey v. D., L. S N. B. Co. 83 Mich. 432, 47 N. W. 319; Weaver v. Iselin, 161 Pa. St. 386, 29 Atl. 49; Johnson v. B. C. P. B. Co. 160 Pa. St 647, 28 Atl. 1001; Smith v. H., M. & F. P. B. Co. 92 Pa. St. 450; McGee v. Wabash B. Co. 214 Mo. 530, 114 S. W. 33.</p> <p>cited Slensby v. Milwaulcee St. B. Co. 95 Wis. 179, 70 N. W. 67; Glettler v. Sheboygan L., P. & B. Co. 130 Wis. 137, 109 N. W. 973; Gould v. Merrill B. & L. Co. 139 Wis. 433, 121 N. W. 161; Van Salvellergh v. Green Bay T. Co. 132 Wis. 166, 111 N. W. 120.</p>

<p> Negligence causing death: Attraction to children on street: Failure to guard against meddling. </p> <p>1. One who maintains in the public street an unguarded objeet or condition likely to attract children to meddle or play therewith, with the probable result of causing injuries to themselves or others lawfully using the street, is guilty of actionable negligence, providing such person knows or is chargeable with knowledge of the attractiveness of the object or condition and the consequent probability of such meddling and resulting injuries.</p> <p>2. Upon an electric light tower standing in the street a platform about eighteen feet from the ground was reached by steps. Prom that point defendant’s employee who cared for the lights pulled himself up in a basket suspended from the top of the tower by means of a steel cable running over pulleys and having a counterweight at the other end. Ballast consisting of loose stones was placed in the basket so that its weight, with that of the operator, was about fifteen pounds less than the counterweight; and when at the bottom the basket was fastened to the frame of the tower by a chain and hook, without any lock. The city owned the tower, but the basket and hoisting apparatus, though at long intervals used by the city, were practically under the control of the defendant company, which had the lighting contract. Defendant knew that boys were accustomed to play on the platform. At the time of the accident, two boys (one a son of plaintiff’s intestate) were so playing when the basket in some way became unfastened and started up. When it struck the top the ballast stones flew out and one of them in falling killed the intestate. The jury found that the death was proximately caused by defendant’s negligence in failing to lock the chain which fastened the basket and in using loose stones as ballast. Held, that defendant was liable, under the rule above stated.</p>

Eowlee, Circuit Judge. Plaintiff filed a claim against tbe estate of J ames Randles, deceased, for compensation for personal services claimed to bave been rendered by ber for tbe deceased in bis lifetime under promise of compensation tberefor. Sbe was bis niece and served bim for years before be died. Tbe county court ■ allowed tbe claim at $936. Tbe administrator appealed to tbe circuit court.

Eowler, Circuit Judge. This is an appeal by the Union Lime Company from the order of the circuit court appointing commissioners to ascertain and appraise the compensation to be made to the owners of real estate which it is sought to take to build a spur track as part of the Chicago & Northwestern Railway Company's spur tracks at the place therein designated and described.

<p> Fire insurance: Insurable interest of husband, in wife's property: Amount recoverable: Mutual companies: Forfeitures. </p> <p>1. A husband who resided with Ms wife on a farm which was her sole property and, with her consent, had the possession and entire beneficial use thereof, operating the farm and applying the proceeds to improvements and the support of himself and the family, had an insurable interest in the buildings.</p> <p>2. The fact that the husband did not own the personal property on the farm is not material upon the question as to his insurable interest in the real estate.</p> <p>3. The fact that the insurer did not know the condition of the title does not affect its liability, there being no provision in the policy that the insured must be the sole and unconditional owner, and there having been no misstatement or fraudulent concealment of the facts.</p> <p>4. The fact that the insurer is a mutual company whose constitution provides that “whoever sells or exchanges his property leaves the company by this act and loses all rights,” does not save it from liability. Such provision, being for a forfeiture, must be strictly construed, and the issuance and acceptance of the policy in question did not conflict therewith.</p> <p>5. There being nothing in the policy to indicate that the husband’s interest only was insured, the recovery thereon is not limited to the value of his insurable interest.</p> <p>6. In the absence of fraud or mistake, where the insured has an insurable interest at the time the policy is issued and there is no limitation in the policy, and the insurable interest continues to the time of loss, recovery may be had for the whole loss, not exceeding the amount of the insurance.</p>

<p>Appeal from a judgment of tbe circuit court for Eond du' Lac county: Ohestee. A. Eowlee, Circuit Judge.</p> <p>Tbe plaintiff set forth in her complaint that tbe defendant sold to her on two separate occasions stock in tbe Church Furnishing Company of Eond du Lac, to the amount in the aggregate of $350, under a promise to purchase the same from her if at any time she desired to sell. She further alleged that she relied on the promise and was induced thereby to make the purchase; that she became dissatisfied with the stock and demanded of the defendant that he purchase the same from her according to his agreement, and that he refused to do so. Judgment was demanded for the purchase price of the stock with interest. The answer was a general denial. The jury returned the following verdict:</p> <p>“(1) Did the defendant, on or about August 2, 1910, to induce the plaintiff to purchase the stock of the Church Furnishing Company, evidenced by certificate number 105, promise to take the stock so evidenced on plaintiff’s request, at the amount paid by the plaintiff therefor? A. Yes.</p> <p>“If to the first question you answer ‘Yes,’ then answer this question:</p> <p>“(2) Did the plaintiff rely on said promise in purchasing said stock and was she induced thereby to purchase the same ? A. Yes.</p> <p>“(3) Did the plaintiff thereafter request the defendant to take the said stock? A. Yes.</p> <p>“If to the third question you answer ‘Yes,’ answer this question:</p> <p>“(4) When was such request made? A. September, 1910.</p> <p>“If to the third question you answer ‘Yes,’ then answer this question:</p> <p>“(5) Did the plaintiff request the defendant to take the stock after the receipt of the $7.50 dividend in the spring of 1911? A. Yes.</p> <p>“If to the fifth question you answer ‘Yes/ then answer this question:</p> <p>“(6) At about what time was such request made? A. April, 1911.</p> <p>“(7) Did the defendant, on or about August 12, 1910, to induce the plaintiff to purchase the stock of the Church Furnishing Company, evidenced by certificate number 106, promise to take the stock so evidenced on plaintiff’s request at the amount paid by the plaintiff therefor? A. Yes.</p> <p>“If to the seventh question you answer ‘Yes/ then answer this question:</p> <p>“(8) Did the plaintiff rely on said promise in purchasing said stock, and was she induced thereby to purchase the same? A. Yes.</p> <p>“(9) Did the plaintiff thereafter request the defendant to take said stock? A. Yes.</p> <p>“If to the ninth question you answer ‘Yes/ then answer this question:</p> <p>“(10) When was such request made? A. September, 1910.</p> <p>“If to the ninth question you answer ‘Yes/ then answer this question:</p> <p>“(11) Did the plaintiff request the defendant to take the stock after the receipt of the $7.50 dividend in the spring of 1911 ? A. Yes.</p> <p>“If to the eleventh question you answer ‘Yes/ then answer this question:</p> <p>“(12) At about what time was such request made? A. July, 1911.”</p> <p>After the verdict was returned plaintiff moved for judgment thereon and defendant moved for judgment notwithstanding the verdict. The court granted the defendant’s motion, and from a judgment dismissing the complaint the plaintiff appeals.</p>

Ray SteveNs, Circuit Judge. Action to determine the validity of an order of the Wisconsin Railroad Commission requiring the plaintiff railway company to stop two of its passenger trains each way daily at the station of Cochrane, Wisconsin, pursuant to the provisions of sec. 1801, Stats.