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the question, “Why she threw sparks.” This answer of the witness did not cover an issue submitted to the jury by the special verdict. But opinion evidence may be given on the very point the jury is to decide, when confined to cases when such point is clearly within the field of expert evidence, and the opinions offered are based on undisputed facts, or assumed facts warranted by the record. Maitland V. Gilbert P. Co., 97 Wis. 476, 72 N. W. 1124, 65 Am. St. Rep. 137; Hamann v. Mil. Bridge Co., 127 Wis. 550, 106 N. W. 1081; Innes v. Milwaukee, 103 Wis. 582, 79 N. W. 783. [5, 6] It is insisted that error prejudicial was committed in allowing comparison between wood and coal as to sparks emitted. This evidence was competent on the point as to whether, at the time and under the conditions disclosed by the evidence, it was exercise of ordinary care to use wood in the engine with an open spark arrester. One of defendant's witnesses, on cross-examination, testified that all spark arresters have some open space. It is claimed that it was error to admit evidence offered by plaintiff tending to rebut this. We find no prejudicial error in this regard. [7] It is also claimed that evidence of fires on return trips, when the engine was not loaded, was error, and Menominee Co. v. Mil. R. Co., 91 Wis. 447, 65 N. W. 176, is relied upon. But in that case the ruling was that evidence of fires several months earlier by the same engine was incompetent when, after them and before the fire in question, the engine had been thoroughly overhauled and put in proper condition. In the case at bar, there is evidence of emission of sparks and fire on return trips, and when the engine was not loaded, and under conditions similar to those existing when the fire in question was set. [8] Error is assigned upon the charge in refusal to charge as requested. Under exceptions, designated as exceptions 2 to 6, referring to question 2 of the verdict, the court instructed in respect to the care imposed by law upon one using a traction engine. Under the foregoing head the following part of the charge is excepted to: “As a general rule, it may be said that the owner and operator of a traction engine should use reasonable precaution to provide engines so constructed and equipped as to avoid the unnecessary communication of fire to premises adjoining the road on which it travels.” We discover no error in the foregoing. [9, 10] Perhaps the most objectionable part of the charge under this head is covered by exception 5, which reads: “Such owner and user of a traction engine should provide the best and most approved appliance known to him and in general practical use, and which, under the circumstances, is reasonable to

In so far as this instruction states that the owner and user “should provide the best and most approved appliance known to him,” it is objectionable and erroneous, as requiring too high a degree of care. But the latter part of the instruction qualifies the former, and required the defendant to provide only such engine as is “in general practical use, and which, under the circumstances, it is reasonable to require the owner of such engine to adopt.” The court further qualified this instruction by stating: “This rule does not mean, however, that the owner of the engine is bound to adopt any particular kind of an appliance for the prevention of fire, and, if the kind it has adopted has been approved and in general use, it is not guilty of negligence for failing to adopt appliances of a different kind.” We think the objectionable words were so effectually qualified in the charge that the jury could not have been misled by them, and therefore no prejudicial error was committed. Read v. Morse, 34 Wis. 315; Spaulding v. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550. Exception is taken to portions of the charge respecting the emission of sparks under certain conditions, and the presumption arising therefrom, and whether the engine was equipped with a spark arrester reasonably sufficient to prevent the escape of Sparks and Cinders. In this connection, the court charged the jury: “It is proper for the court to further instruct you that the evidence shows, and the law recognizes, the fact that all locomotives and traction engines are liable to throw out sparks which will set fire in a dry time. It is a truth, tested by common experience, that by no means which the ingenuity or cunning of man has yet been able to devise or discover can the escape of sparks and coals of fire be entirely prevented. So the jury will not-decide that this spark arrester is insufficient, merely because sparks and cinders escaped and set fires.” [11] Error is assigned on refusal to give the following instruction: “I instruct you, gentlemen of the jury, that the evidence of other and former fires set by the engine in question, if you should find that such fires were by it so set, was received solely as bearing upon the condition and reasonable sufficiency of the engine at the time of the occurrence of such fires, and at the time of the Cook fire, and cannot by you be considered as evidence that said engine in fact set the Cook fire.” This request was properly refused. The evidence in the record was not received solely on the issue of condition of the engine, but was received generally, and had a bearing on the issues as to whether the engine set the fire in question, and notice as to the sufficiency of the spark arrester. 1 Wigmore on Ev. § 452; Spauld550; Brusberg v. Railway Co., 55 Wis. 106,

12 N. W. 416. We find no reversible error in the record. The judgment is affirmed.


(Supreme Court of Wisconsin. Nov. 14, 1911.)

1. MUNICIPAL CoRPoRATIons (§ S21*)—STREETS – UNGUARDED ExCAVATIONS – DEATH OF CHILD–JURY QUESTIONS. In an action against a lighting company for death of a child, who fell into an unguarded excavation in a street, held, under the evidence, that the questions whether the company was negligent or the child guilty of contributory negligence were for the jury. [Ed. Note.—For other cases Corporations, Dec. Dig. § šij

2. NEGLIGENCE ($ 85*) — APPRECIATION OF DANGER — APPLICABILITY OF DOCTRINE CHILDREN. Appreciation of known danger as an element of contributory negligence is not limited to the relation of master and servant, but applies to the issue whether a child used ordinary care for its own safety. [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 121–129; Dec. Dig. $ 85.”]

3. TRIAL (§ 244*)—INSTRUCTIONs—REFERENCE To EVIDENCE. In instructing, a trial court may properly refer to features of the evidence, making no attempt to give particular prominence to any part, so as to suggest the weight that should be given thereto. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 577–581; Dec. Dig. § 244."]



Inadvertent omission by the trial judge of

any particular material, feature in instructing concerning the evidence is not assignable as er: ror, unless his attention is seasonably called thereto.

[Ed. Note...—For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 627–641.]

5. DEATH ($ 84*) – DAMAGEs – ELEMENTs — FUNERAL ExPENSEs. In a suit for negligent death of a child, brought for the benefit of the father, funeral expenses paid are recoverable. [Ed. Note.—For other cases, see Death, Cent. Dig. $ 110; Dec. Dig. § 84.”]

6. APPEAL AND ERRoR (§ 1140*)—AFFIRMANCE —Coxspel LING REMISSION. In cutting down a verdict as excessive, and compelling defendant to submit to the reduced amount at plaintiff's election, care should be used not to invade the constitutional right of jury trial; and this can be well accomplished by fixing the amount, on acceptance of which the case will be affirmed at the minimum which a jury could reasonably be expected to give on the evidence. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4462–4478; Dec. Dig. § 1140.*] 7. APPEAL AND ERRoR (§ 221*)—REview — RESERVATION OF GROUNDS. Any error of the trial court in commelling defendant to submit to a reduced verdict at plaintiff's election is not reviewable, in the absence of steps for review taken in the lower

see Municipal

court, and in the absence of assignment of error.

[Ed. Note.—For other cases, see Appeal, and Error, Cent. Dig. §§ 1353–1368; Dec. Dig. § 221.*]

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by Clarence J. Secard, as administrator of Beatrice Secard, deceased, against the Rhinelander Lighting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for damages caused by the alleged taking of the intestate's life.

The pleadings presented the question of whether defendant was legally liable for the intestate's death. The evidence proved, or tended to prove, this: The defendant, in the course of its permissible operations as a public utility corporation, made several excavations in a street of the city of Rhinelander, about 5 feet deep, 20 inches in diameter at the top, and somewhat less at the bottom. The work was finished about the middle of the afternoon of the day of the accident. The intention, for a time, was to equip the excavations with poles during the afternoon and completely close them. The employé who did the excavating soon thereaster went away for an hour or so, leaving the holes wholly unguarded. Finally, it was determined not to close them up until the following day. Thereupon employés went thereto for the purpose of putting covering thereon. In the meantime the accident occurred. The particular hole was about 2 feet from the sidewalk. The street was considerably used. Children were liable to pass along, in either direction, and, attracted by the hole, approach near to and play around the brink. The earth at the surface was hard, but from a little below the ground was of a nature liable to cave as must have been observable to the persons who did the digging. He, however, in walking around the edge of the particular hole when doing the work did not start any caving, so far as observed. The deceased, a child between 9 and 10 years of age and reasonably intelligent for one of her years, and her sister, who was 11 years of age, about 5 o'clock p. m. went from their home to the vicinity of the hole. Two other girls, one 13 years of age, accompanied them. They met at the particular place. The deceased and older girl crossed the street to another hole and looked in. The sister of deceased thereupon admonished them to come away, saying, at the same time, there was danger of their falling in. They turned back, went to the particular place and deceased jumped across it. She then walked partly around the hole and stood in an attitude of preparing to jump again. The two older girls then called to her to step away from the hole as there was danger of falling in. She replied that if she did so she could get out. She was then swinging her arms, leaning forward a little and apparently preparing to jump. Suddenly she pitched forward, apparently head first, into the hole and wholly disappeared. The earth caved as she went. Some of the Crust broke down. The cave-in was sufficient to bury the child out of sight, except one lower limb from the knee. When, by excavating, her form was rescued, she was found to be dead. She lay substantially on her back, with her head the lowest and bent forward onto her breast. Her trunk was some 3 feet above the bottom of the hole, while her feet were higher, one limb and foot, as stated, being above the caved-in earth, which reached to within about 2 feet of the surface. Evidence was admitted, without objection, following the allegations of the complaint respecting funeral expenses incurred to the extent of about $69. The jury found that defendant failed to use ordinary care in respect to the hole; that the girl was free from contributory negligence; that the fault of defendant was the proximate cause of the injury, and that the pecuniary loss to the father, including funeral expense, was $2,071.90. The court refused to allow a recovery in excess of $1,500, but ordered judgment for that amount with costs, at plaintiff's election. That determination was submitted to by plaintiff and judgment was rendered accordingly.

"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

E. D. Minahan, for appellant. Barton & Kay and Chas. W. Fricke, for respondent.

MARSHALL, J. (after stating the facts as above). [1] It is not claimed, with confidence, that there was no jury question respecting actionable fault on the part of defendant. The subject is merely suggested and submitted. It is considered that like brief treatment will suffice here.

The evidence has been examined. There is no controversy as to what was done and left undone by defendant. Is it consistent with ordinary care, in view of the known fact that young children, yet old enough to go to school unattended and otherwise to be upon the street, are liable to be near excavations, and in view of the common knowledge that such children of little judgment are quite likely to be attracted by such things, to leave them unguarded, as in this case? It does not seem difficult to answer that.

It is conceded that it is dangerous for a child to walk around the edge of such a hole. The whole case for appellant is grounded on that theory, and that danger was so apparent that the child, upon being admonished to keep away from the hole as there was danger of her falling into it, should have known and appreciated the risk she took. That defense, under the circumstances, is a confession that appellant created a serious danger by which children, lawfully in the street,

ed that there were at least reasonable inferences in respondent's favor as regards whether there was actionable negligence, barring contributory negligence. Was the child guilty of efficient contributory fault? The argument to sustain the affirmative is based wholly on the theory that she was admonished to step back from the hole and, in face of that, remained and did the thing which led to her death—fell in as she was admonished might be the case, and the cave-in followed. The chief support of such contention is the claim that the child fell into the excavation before there was breaking down of the surface, and that the disturbance by her person in the hole caused the cave-in. A Very ingenious argument on that appears in counsel's brief, but it is far from conclusive. The fact that no part of the child's body was at the bottom of the hole, or very near to it, strongly rebuts the theory that she fell in before there was any caving. Again, the general location of her person further rebuts it. So if it were vital to the case to determine whether the child fell in and the earth then caved, or the giving way of the earth under her feet, or close to them, caused the fall, there was a fair jury question on the evidence. The claim is made that the evidence shows a clear case of inexcusable carelessness of the child, because she was admonished of the danger of being near the brink of the excavation; Ryan v. La Crosse City R. Co., 108 Wis. 122, 83 N. W. 770, Wills v. Ashland Light, Power & Street Ry. Co., 108 Wis. 255, 84 N. W. 998, and similar cases being relied on. They were grounded upon the principle that children as well as adults are bound to exercise ordinary care for their own safety, to the extent which they may reasonably be expected, under all the circumstances, to know and appreciate perils of personal injury. So it was said, in effect, in the first case, that a child, accustomed to street cars at the early age of 8 or 9 years, who knows of the liability of one passing on the track at any time, especially that one may do so at or near a particular time and knows the danger of being then on the track—a child old and intelligent enough to know that to walk upon or so near the track as to be within reach of a car, regardless of whether one is about to pass, is perilous, who goes under such circumstances within the pathway of a car is guilty of fatal want of ordinary care. All the authorities along that line turn upon the principle that, as to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development and intelligence under the circumstances characterizing the particular event. Klatt v. N. C. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563. So it follows that, while the principle discussed is fixed in its scope, circumstances so alter cases that the decision in one case does er further than that the rule of personal responsibility for personal safety, within Stated general limitations, applies to children as well as adults. To that extent the cases cited by counsel for appellant apply here, but such application, in view of the particular facts, falls far short of showing that deceased was guilty of contributory negligence as a matter of law. One fatal difficulty with the position of appellant's counsel is that the child was not admonished of any danger of the earth she was standing on or near giving way at the surface, as there is evidence, it is thought, from which the jury might reasonably have come to the conclusion was the case. She had full confidence in her ability to walk around the hole without any danger of falling in, and demonstrated her capacity in that respect by jumping across the hole and preparing to jump back. It was such breaking down of the surface, precipitating her, as it were, into the hole, as the jury may reasonably have concluded, which caused the mischief. She had no warning of such a danger. Whether she ought to have known of it without warning is by no means clear. So the matter was properly submitted to the jury. [2] We note counsel for appellant claims that the element of appreciation of known danger, or appreciation of the danger of known situation, does not apply to such a case as this—that it only applies to where the relations of master and servant exist. That is a novel idea and wrong as it is novel. It applies in many situations involving the conduct of persons so young that they cannot reasonably be expected to possess substantially the judgment of adults. When an adult or person of general intelligence of an adult knows, or ought reasonably to know, the facts, he is presumed to comprehend and appreciate danger incident thereto. Not so as to a young child old enough to be chargeable with some degree of care for its own saftey, but not that of persons generally, or even children of its age generally. So while the term “comprehend and appreciate” is confusing and often out of place in reference to the responsibilities of an adult or experienced person, it is proper, and generally necessary, as to that of such children. True, the law in this regard is more commonly invoked in regard to the relations between master and servant, but the principle of it applies in any situation where the question is vital as to whether a child exercised ordinary care for its own safety. So it seems that there was a fair question for the jury on the evidence in this case as to whether the deceased knew, or ought, under the circumstances, to have known, and appreciated the danger of the earth caving from under or near her feet and causing her to fall into the hole. Of such an event she had no warning. That it was just such an event which led to her death, the jury may reasonably have concluded from the evidence.

in referring to testimony relating to a vital question, did not refer to all of it. We fail to discover the court made any attempt to cite to the jury the details of the evidence. The references thereto were made in most general terms and carried the idea, plainly, that the evidence, and all of it, bearing on the question was to be considered, though those precise terms were not used. [4] The court may properly refer to features of the evidence, making no attempt to give particular prominence to any part, so as to suggest the weight that should be given thereto. If, in referring to the evidence, any particular material feature is inadvertently omitted and attention is not seasonably called thereto, there is no assignable error in regard to the matter, and no prejudicial error in any event, unless it appears that the omission may, probably, have affected the result unfavorably to the party complaining. [5] Complaint is made because the funeral expenses were allowed to be considered in determining the damages. No error was committed in that regard. It plainly constituted pecuniary loss of the father, for whose benefit the action was brought. Moreover, whether the trial court in correcting the verdict removed that element does not appear. That may have been the intention. [6] There is no complaint as to the amount of the verdict on the ground of excessiveness. However, to avoid danger of the recovery being referred to as a precedent, it seems well to say that in cutting down a verdict as erroneous, and compelling defendant to submit to a reduced amount at the plaintiff's election, care should be exercised not to invade the constitutional right of trial by jury. That is to be avoided, as this court has often held, by fixing the optional amount at the minimum which a jury might rightfully allow on the evidence, instead of the maximum. Baxter v. Ry. Co., 104 Wis. 307, 335, 80 N. W. 644; Beach v. Bird & Wells Lumber Co., 135 Wis. 550, 560, 116 N. W. 245. The primary idea, in such a case, is that the verdict of the jury is prejudicially erroneous, requiring it to be set aside—that the verdict is characterized by fatal error. The next idea is to correct the error without a new trial, without prejudice to the constitutional right of trial by jury. That is clearly done, as suggested by Mr. Justice Timlin, speaking for the court in the last case cited, by fixing the optional amount as low as a jury, acting within its province, could be reasonably expected to place it. The trial court, as seen by the opinion, put the amount here somewhat more than the maximum a jury would be permitted to place it, and failed to take note of the fact that a sum paid presently is much greater, in the practical sense, than a like sum paid years in the future. These observations are made, as before indicated, to guard against the course followed being referred to by or in trial courts as a guide. [7] Whatever prejudice, if any, there was to

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SAME) v. MEIREDITH et al. (Supreme Court of Iowa. Oct. 20, 1911.) 1. Assign MENTs (§ 19°)—CoNTRACT To ConVEY—SUBSTITUTION OF OBLIGORS. A vendor need not accept a mortgage from the purchaser's transferee, in satisfaction of the purchaser's obligation to give a mortgage, in the absence of acquiescence in the arrangement. [Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 28–31; Dec. Dig. § 19.”] 2. WENDoR AND PURCHAsFR ($ 312*)—BREACH BY PURCHASER—TIME FOR SUIT. If a contract purchaser disables himself from performing, he may be sued for the breach before the day of performance. [Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 312.*]

3. VENDoR AND PURCHAsFR ($ 308*)—REcovERY OF PRICE—DEFECTIVE TITLE. A contract purchaser cannot retain possession, and at the same time defeat recovery of the price on the ground of defective title. [Ed. Note.—For other cases, see Vendor, and £go. Cent. Dig. §§ 8S9–S91; Dec. Dig. §

4. QUIETING, TITLE ($ 10*)—Who MAY SUE. Under Code § 4223, authorizing suit to lost title by any one interested, a contract vendor can sue, though he has conveyed under warranty, where payment of part of the price is deferred until perfection of title; but where liability on the warranty has been avoided, and the vendor has recovered judgment for the deferred payment, he has no interest entitling him to quiet title. [Ed. Note.—For other cases, see Quieting Title, Dec. Dig. $ 10.*] Appeals from District Court, Taylor County; H. K. Evans, Judge. In the first of the entitled actions recovery for unpaid purchase price of 80 acres of land was sought, and in the second the relief prayed was that title thereto be quieted in plaintiff. The suits were heard together on the same evidence, but separate decrees entered. The decree in the first was as prayed, and in the second the petition was dismissed. The defendants in the first and the plaintiff in the second appeal. Affirmed.

G. B. Haddock, for plaintiff. McCoun & Burrell and Wm. Jackson, for defendants.

LADD, J. The subject in dispute is 80 acres of land. It appears that Joseph B. and William G. Meredith acquired a quarter section in Taylor county in 1858, and that the former died in 1861, leaving him surviving a widow, Nahama G. Meredith, and an only child bearing his father's name. Under the law then in force the widow was entitled to a life estate in one-third, and the child the remainder and the other two-thirds. He died within a year, and the widow took a

life estate in the other two-thirds, and after her death an undivided one-half would pass to the nearest heirs of her deceased husband, and the other undivided one-half to the nearest heirs of herself. Norris v. McGaffick, 21 Iowa, 201. Her father, Jabez Ward, would have been the widow's nearest heir, had she then died, and, as the husband's parents were dead, his brothers, Thomas J. and William G. Meredith, and his sister, Margaret G. Miller, were his nearest heirs. Jabez Ward quitclaimed an interest he then had in the land to the widow in 1865, and thereupon she instituted an action in partition against William G. Meredith, and a decree was entered setting apart to her absolutely the S. E. 14 S. W.14 of the section and a life estate in the N. E. 14 S. W. 44 thereof. Subsequently, in 1875, she executed to William G. a quitclaim deed to the north 40 acres and a warranty deed to the south 40. The grantee, William G. Meredith, died testate in 1878, devising the S0 to his son, Samuel Lucien Meredith, who, in 1894, conveyed it by warranty deed to N. C. Scott, and it was by him transferred in the same way to Thomas Laird on the same day, by Laird to M. D. Coombs in 1896, and by Coombs to plaintiff, J. W. Hounchin, in 1900. The evidence leaves no doubt but that, since the conveyance to Scott, until sold by Hounchin in 1908, 14 to 15 years, the possession was adverse, if this were possible, as against those entitled to the remainder. Another conveyance by quitclaim deed should be mentioned—that of Thomas J. Meredith and Margaret G. Miller, brother and sister of Joseph B. Meredith, to R. M. Meredith, the wife of E. W. Meredith, a son of William G., deceased. On January 2, 1908, J. W. Hounchin negotiated a sale to J. H. and Eudura Salyards, agreeing to sell the land to them “for the consideration of $62.50 per acre, to be paid as follows: $200 paid cash in hand, the receipt of which is hereby acknowledged ; a promissory note for $100 due March 4, 1908, without interest; $900 to be paid on March 4, 1908. Party of the second part agrees to assume and pay a certain first mortgage loan of $2,000 now on said farm, and party of the first part agrees to loan to party of the second part $1,800 of the purchase price for a term of seven years, from March 1, 1908, at 6 per cent. interest, payable annually on March 1st each year, on the terms of $200 being payable on each interest pay date, with the option of paying any amount in excess of $200. When party of the second part has completed the agreements herein contained, party of the first part agrees to deliver to the party of the second part his warranty deed, and complete and perfect abstract of title for said land, and give possession of said farm on same date. Telephone

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