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speed at which the car was moving, not so definite as perhaps it might be made on a new trial. Whilst plaintiff's witnesses speak of - full speed” and of the mule galloping, they do not say or intimate that the car was going at a speed unusual or which we can see w be improper in street cars, or make any estimate whatever of its speed. It does not appear why the driver of the car was not examined on either side.

With the concurrence of all the judges, the judgment is reversed and the cause remanded.

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1. DEFECTIVE HIGHWAY EVIDENCE-NOTICE TO CITY.-In an action for injuries from a defective highway, express notice to the authorities of the defect is admissible in evidence. But evidence that the authorities, upon actual view, were satisfied with the condition of the highway, is inadmissible.

2. A TRAVELED HIGHWAY must be reasonably safe for travel over its whole surface.

3. CONTRIBUTORY NEGLIGENCE OF DRIVER. The negligence of the driver of a private carriage will prevent a recovery by an injured passenger, the driver being considered as only the agent of the passenger.

RYAN, C. J., delivered the opinion of the court.

1. There is no error in the omission or exclusion of evidence to disturb the judgment.

Notice of the insufficiency of the highway, or reasonable opportunity of knowing it, was necessary to charge the appellant. Express notice to the authorities of the city was plainly proper. Harper v. Milwaukee, 30 Wis. 365. And the evidence of. fered that the authorities of the city, upon actual view, were satisfied with the condition of the highway, was clearly inadmissible to excuse the appellant. Section 1, Ch. 5 of Charter; Ch. 237 of 1873, does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street.

The evidence offered that the appellant had expended all the means at its disposal in repairing its streets, had no tendency to excuse it. Every municipality is bound, at its peril, to keep its highway in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways. Leonard v. Milford, 21 Wis. 485; Ward v. Jefferson, 24 Wis. 342; Burns v. Elba, 32 Wis. 605; Green v. Bridgecreek, 38 Wis. 419.

The res gestæ of this accident did not go with the team to the livery stable, but remained in the locus in quo with the injured woman. And the declarations of the driver to the livery man were a subsequent narrative of the res gestæ, not admissible in chief as offered, though admissible, upon proper foundation, to contradict the driver. Sor. enson v. Dundas, 42 Wis. 642.

II. The charge of the learned judge, who presided at the trial in the court below, was severely criticised by the learned counsel of the appellant. And it must be confessed that some parts of it are unaccountably confused and inaccurate.

So far as it relates to the negligence of the appellant, it is unnecessary to review it. It may be doubted whether any inaccuracy of the charge on that point would warrant the reversal of the judgment. For there is no controversy or doubt as to the condition of the highway. It was such that the court would have been warranted in holding it unsafe as matter of law. There was a depression in one of the traveled streets of the city. The authorities raised one-half in width of the street over the depression by embankment some six feet high in the middle and gradually lessening towards each end. The side of the embankment next to the other half of the street, left on its natural level, was precipitcus and rough, without railing or bar. rier to protect travelers from being precipitated over it. It is claimed that each half of the street was sufficient for travel, and that because each side was safe by itself, the whole street was safe. This is a great and mischievous error. A traveled highway must be reasonably safe for travel over its whole surface. Cremer v. Portland, 36 Wis. 92. A road cut in two by a precipice is almost equally unsafe in fact, is equally insufficient in law, whether the piecipice be across or along the highway. Although towns are not generally bound to keep the full width of the highways fit for travel, but only a sufficient width, yet a country road

Appeal from judgment for $2,500 and costs in favor of the plaintiff. The complaint alleges in substance that, in the summer of 1875, the defendant city, by direction of the street commissioners, wrongfully placed large quantities of dirt and rock in one of the public streets, which formed an enbankment in the center of the street about twenty feet wide and two hundred feet long, one side of which was six feet above the surface of the street and the other four, both being precipitous and sloping at an angle of forty-five degrees, over which embankment it was necessary to drive all carriages, and that it was exceedingly dangerous to do so, especially in the night time; that, in August, 1875, in the night time, by reason of the negligence of the city, a carriage containing the plaintiff and several others was overturned, and the plaintiff severely injured, her leg broken, etc. The answer alleges that the accident was caused by the negligence of the plaintiff and of the person who was driving at the time of the accident.

The other facts and the issues raised on the admission of evidence and the instructions of the court will sufficiently appear from the opinion.

Strong & McArthur, for plaintiff and respondent; Lanyon & Spensley and J. T. Mills, for defendant and appellant.

passing along an embankment of the width of that in this case, with a side or sides as precipitous and as unprotected, would under all ordinary circumstances be held dangerous. Houfe v. Fulton, 29 Wis. 296; $. C., 34 Wis. 608; Jackson v. Belleview, 30 Wis. 250; Kelly v. Fond Du Lac, 31 Wis. 179; s. C., 36 Wis. 307; Burns v. Elba, supra; Hawes v. Fox Lake, 33 Wis. 438. A fortiori, a traveled street in an incorporated city. Wheeler v. Westport, 30 Wis. 392. In this case the rule applies with peculiar force; for the dangerous character of the street did not come by nature or by accident, but by the willful act of the city authorities. Milkaukee v. Davis, 6 Wis. 377; Harper v. Milwaukee, supra.

But as they bear upon the question of contributory negligence, the inaccuracies of the charge are important. The learned judge did not correctly state the rule of proof of contributory negligence, in actions for negligence, settled in Hoyt v. Hudson, 41 Wis. 105. It does not put the onus probandi in all cases upon the defendant, as the learned judge appears to have stated. The rule intended in that case is that, a plaintiff, giving evidence of the negligence of the defendant, and the resulting injury to himself, without showing any contributory negligence, is bound to go no further; he is not required to negative his own negligence. If, however, the plaintiff, in proving the injury, shows contributory negligence sufficient to defeat the action, he disproves his own case of injury by the negligence of the defendant alone. If the plaintiff's evidence leave no doubt of the fact, his contributory negligence is taken as matter of law to warrant a nopsuit. If the plaintiff's evidence leave the fact in doubt, the evidence of contributory negligence on both sides should go to the jury. This was, perhaps, not as closely stated as it might have been, and has been criticised. Properly understood, the rule in Hoyt v. Hudson, makes no confusion between the burden of proof and the weight of evidence; is sounder in principle and easier in practice than the rule in Massachusetts, which, with great deference for that court, this court there declined to adopt. The true ground of reversal in Hoyt v. Hudson was that the charge of the court submitted the question of contributory negligence to the jury when there was no evidence of contributory negligence on either side; giving the jury to believe that the plaintiff was bound affirmatively to disprove it.

The learned judge instructed the jury that if the driver of the carriage was so grossly negligent or careless as to contribute to the injury the respondent could not recover. Travelers are always held to the exercise of ordinary care. Slight want of ordinary care will defeat an action for injury caused by a defect in a highway. This was, prehaps, what the charge intended. The learned judge told the jury elsewhere that the driver was held to ordinary prudence; but said, in the same connection, that if this person was driving as one ordinarily drives, not thinking of danger, and thus met the accident, he was guilty of no negligence. All this, taken together, is not very clear. Ordinary care, in such a case, is care against danger.

It is carelessness, not care, which, in such a case, has no thought of danger. Driving in the dark without thinking of danger, as one "whistling for want of thought," is surely not ordinary care. The fair inference, perhaps, from the somewhat loose dicta of the charge, the inference which the jury probably drew, is that want of ordinary care, to defeat the action, must be gross; dealing with gross negligence as gross want of ordinary care. The degree of contributory negligence which will defeat an action has been repeatedly settled by this court, and may be given to juries without difficulty in plain and unambiguous terms. Dreher v. Fitchburg, 22 Wis. 675; Ward v. Railway Co., 29 Wis. 144; Wheeler v. Westport, supra; Hammond v. Muckwa, 40 Wis. 35; Griffin v. Willow, presently decided.

The charge is still more unhappy in giving the measure of proof to establish contributory negligence on the part of the driver. The learned judge tells the jury in effect that contributory negligence must be proved conclusively to their minds. Conclusive presumptions relate rather to matters of law than matters of fact. When a judgment determines a fact, the fact is conclusively established between the parties. But it is conclusive by force of the judgment, not by force of the evidence on which the judgment proceeds. Evidence can not well establish litigated questions of mere fact conclusively. Juries are never held to find mere matters of fact on conclusive evidence. In civil causes preponderance of evidence is sufficient. In criminal prosecutions guilt is to be proved, not conclusively but only beyond reasonable doubt.

There is nothing elsewhere in the charge to obviate or qualify this error. Taken with the rule of burden of proof, as the jury must have understood it, the charge is that the evidence given by appellant must conclusively satisfy the jury of contributory negligence to defeat the action. It may be, as was urged, that the verdict would not have been different, had the rule of contributory negligence, and of the evidence sufficient to establish it, been correctly given to the jury. This court can not usurp the functions of the jury to say

There was some evidence-it would be improper to say of what weight-tending towards contributory negligence. And the verdict can not be sustained under the charge, if the respondents are answerable for the negligence of the driver.

III. The case appears to have been tried in the court below upon the theory that the right of the responden s to recover would be defeated by contributory negligence of the driver, without personal negligence of the female respondent; as seems to have been taken for granted by this court in Houfe v. Fulton, supra. But the learned counsel for the respondents takes the position here that his clients are entitled to recover, notwithstanding negligence of the driver; no evidence in the case tending to attribute personal negligence to the injured woman herself. And there is some authority for his position.

When injury is caused by the concurring negligence of two common carriers, it has for many years been a question whether the negligence of

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the carrier by which a passenger is carried can be cases which implies an agency. So several perimputed to him as contributory negligence in an sons voluntarily associating themselves to travel action against the other carrier. There appears to together in one conveyance, not only put a personal be no uniform rule of decision. In England it trust in the skill and care of that one of them seems to have been held that the negligence of his whom they trust with the direction and control of own carrier will defeat the action of a passenger the conveyance, but appear to put a personal against the other carrier. Bridge v. G. J. Railway trust each in the discretion of each against negliCo., 3 M. & W. 244; Thorogood v. Bryan, 8 C. B. gence affecting the common safety. One enters a 115; Pattlin v. Hill, id. 123. In New York the rule public conveyance, in some sort, of moral necessity. appears to be that the injured passenger may re- One generaly enters a private conveyance of free cover in such a case against either or both of the choice; voluntarily trusting to its sufficiency and carriers. Chapman v. N. H. Railroad Co., 19 N. Y. safety. It appears absurd to hold that one volun341; Colegrove v. N. Y. & N. H. Railroad Co., 20 tarily choosing to ride in a private conveyance, N. Y. 492. So it has been held in New Jersey that trusts to the sufficiency of the highway, to the care negligence of a carrier can not be imputed to a and skill exercised in all other vehicles upon it; passenger carried by it to defeat his recovery to the care and skill governing trains at railroad against the other carrier. Bennett v. N. J. Rail- crossings; to the care and skill of every thing exroad Co., 36 N. J. 225. Pennsylvania seems in- cept that which is most immediately important to clined to lean somewhat towards the English rule. himself; and trusts nothing to the sufficiency of Lockhart v. Litchtenthaler, 46 Penn. St. 151. In the very vehicle in which he voluntarily travels, this case Thompson, J., cites a Michigan case nothing to the care and skill of the person in which we have not been able to find [incorrectly charge of it. His voluntary entrance is an act quoted : should have been D. L. & N. Turnpike of faith in the driver; by implication of law he acCo. v. Stewart, 2 Met. (Ky.) 119,] apparently fa- cepts the driver as his agent to drive him. In the voring the New York rule, and intimates that the absence of express adjudication, the general rules doctrine of Smith v. Smith, 2 Pick. 621; C. C. & C. of implied agency appear to sanction this view. Railroad Co. v. Terry, 8 Ohio St. 570; and Puter- Beck v. E.R. Ferry Co., 6 Roberts, 82, turned upon baugh v. Reason, 9 Ohio St. 484, are in accord the liability of a steam vessel for the death of one with the rule of the English Common Pleas, of a party in a small boat, apparently a pleasure which we confess we are not quite able to perceive. boat. Contributory degligence of the party in the

Aside from questions of public policy affecting boat was a question in the case. And it is said, the duty and liability of common carriers, which “ The deceased was undoubtedly chargeable with enter into some of these cases, the question ap- any neglect of his comrades, as well as his own, to pears to be how far common carriers can be con- do every act to avoid danger and insure safety, at sidered as agents of passengers carried by them. least unless he did all he could to repair the defiWe think that there is no case in this court bear- ciency. None of them stood in the light of either ing on this question, and it is unnecessary here to employer or employed to the other. It was a joint indicate an opinion upon it. It is proper to say, expedition, in which each was liable for the acts however, that, in the present state of society, it is

and omissions of the other, unless he took some a substantial necessity for all or most travelers to separate steps to repair or prevent the result of the avail themselves of public conveyances; and that negligence of the other." This case is not exthere might be great difficulty in applying to them pressly overruled, but seems rather to be approved the rule of personal trust and agency applicable to

in Robinson v. N. Y. C. R. R. Co., 66 N. Y. 11. private conveyances.

But the two cases appear none the less to conflict In the latter case, where the agency of a person in principle. Robinson v. R. R. Co., turned upon in control of a private conveyance is express, there

liability for injury by a railroad train, to a female, is no difficulty in the rule. The contributory neg

voluntarily riding with a male friend on his inviligence of the servant will defeat the master's ac

tation. The court holds that the action was not tion for negligence against a third person. And

defeated by the man's contributory negligence. it seems that there ought to be as little difficulty

The court remarks that the man and woman were in the rule where the agency is implied only. One not engaged in a joint enterprise, in the sense of voluntarily in a private conveyance voluntarily mutual responsibility for each others acts, as in trusts his personal safety in the conveyance to the

Beck v. Ferry Co. It is difficult to comprehend person in control of it. Voluntary entrance into

the distinction. The court says that it was the a private eonveyance adopts the conveyance for case of a gratuitous ride, by a female, upon the inthe time being as one's own, and assumes the risk vitation of the owner of a horse and carriage. of the skill and care of the person guiding it. Pro Doubtless; but there was the same mutual agreehac vice, the master of a private yacht or the driver ment of the two to travel together, as of the serof a private carriage is accepted as agent by every

eral to sail together, in Beck v. Ferry Co. These person voluntarily committing himself to it. were, in contemplation of law, as much in the When paterfamilias drives his wife and child in same boat as those. A woman may and should his own vehicle he is surely their agent in driving

refuse to ride with a man, if she dislike or distrust them to charge them with his negligence. It is the man, or his horse, or his carriage. But if she difficult to perceive on what principle he is less the voluntarily accepts his invitation to ride, the man agent of one who accepts his or their invitation to may, indeed, become liable to her for gross negliride with them. There is a personal trust in such gence; but as to third persons, the man is her agent



to drive her; she takes man and horse and carriage for the jaunt, for better, for worse.

Speaking of the position of counsel, that the woman voluntarily entrusted her safety to the man's care and prudence, and exposed herself to risk from his negligence or want of skill, the court says: “If this argument is sound, why should it not apply in all cases, to public conveyances as well as private? The acceptance of an invitation to ride creates no more responsibility for the acts of the driver than the riding in a stage coach, or even a train of cars." The same court, in another case, truly declares that traveling by public lines of carriage has become a practical necessity. And this question appears to be briefly but sufficiently answered by itself in Chapman v. N. H. R. R. Co., supra. Speaking of the plaintiff in that case it was said: “ He was a passenger on the Harlem cars

bound to submit to the regulations of the company and the direction of their officers. * He had no control, no management, even no advisory powers, over the train on which he was riding. Even as to election, he had only the choice of going by that railroad or by none." Indeed, it seems little less than idle to compare the relation of a woman voluntarily riding for her pleasure with her lover, friend or relative in his carriage, with the relation of a passenger to the carrier on whose cars or vessel he is practically obliged to travel.

To the same effect are Knapp v. Dagg. 18 How. Pr. 165, and Metcalf v. Baker, 11 Abbott, N. S. 431, also cited by respondent's counsel, on which particular comment is unnecessary. These are all the cases cited by counsel. The question was suggested rather than argued on one side, and not mentioned on the other. We have had brief opportunity to search for adjudications on the subject; another instance of the dependence of the court on the bar. We have but one other case, a very elaborate one, though this point is decided rather than discussed, as in Houfe v. Fulton, supra. The facts of the case make it a very strong one. A female servant was riding with her master in his wagon, which was wrecked by a railroad train. The master was guilty of contributory negligence, against which the servant appears to have warned him. Yet his contributory negligence was held to defeat her action against the railroad company. L. S. & M. S. Railroad Co. v. Miller, 25 Mich. 274.

This view appears to be sounder in principle and safer in practice than the rule in Robinson v. Railroad Co. And this court adheres to the rule of decision in Houte v. Fulton. .

The judgment is reversed and the cause remanded to the court below for a new trial.

The great contrariety and conflict of decision, in fixture cases, seems to grow out of the fact that the fundamental principles, which govern the subject, have not been satisfactorily ascertained.

Mr. Ferard, in the introduction to his edition of the work of Amos and himself on the subject, recognizes this difficulty in the following language: " And hence it happens that, in questions respecting the right to fixtures, it is generally necessary not only to enquire whether an article, its object and purpose considered, falls within any of the admitted exceptions, but to advert also to many other incidental circumstances, which have occasionally been relied upon in the judgments of the courts. And, indeed, where there is a direct precedent in favor of the removal of a particular fixture, the right of the claimant may still be subject to great uncertainty, if he does not stand precisely in the same situation as the party who has been held intitled to remove it. For the courts have repeatedly affirmed that the exceptions from the ancient rule of law have been carried to a different extent in the several cases of landlord and tenant, executor of tenant for life, or in tail and remainder-man or reversioner, and executor of tenant in fee and the heir. And yet the limits within which the privileges of these parties are respectively confined are nowhere pointed out; neither have any satisfactory reasons been assigned by the courts for the distinctions thus laid down, from a consideration of which the rights of these several classes of individuals might be inferred.” Hare and Wallace's note to the case of Elwes v. Mawe, in Smith's Leading Cases, vol. 2, page 276,* illustrates the difficulty mentioned, in its collection of the criteria which have been announced in different cases to determinate whether chattels have or not became part of the realty. They are as follows, stated in an order of progression which will probably show up their variety in a stronger light than that in which they appear in the note:

1. The criterion is the adaptation of the thing in question to the place where it was, and its unfitness for use elsewhere. 2 S. L. C., page 274.

2. It must either be actually affixed to the free

THE LIABILITY OF MARRIED MEN.- To bear the Liabilities of Married Women.-Punch.

The United States Senate on the 24th inst. passed the bill for an additional Circuit Judge in the Second Judicial District, which includes the state of New York.

“In the name of Heaven!” said Mr. Benjamin, Q. C., addressing the Master of the Rolls. “I do not quite see,” said Sir George Jessel, “ what Heaven has to do with the case. If you mean to appeal, you must appeal to the Appellate Court."

jury, or so closely adapted to or dependent on its uses that its value would be lost or impaired if it were detached and carried elsewhere. Pape 270-1.

3. It is sufficient if it has been attached to the realty with a view to the purposes for which the latter is held or employed, however slight the annexation. Page 248.

4. Whatever is essential to the particular use to which a building is applied, should be considered as a fixture. Page 268.

5. Actual annexation to the freehold and adaptation to its purposes must both unite in order to render personal property incident and appurtenant to real estate. Page 272.

6. It depends not on whether the machinery is * The citations are to the top page numbers of the edition of 1866, except where the later edition is expressed.

acutually affixed to the building, but whether it is to the uses and purposes of the freehold and the appermanent in its character and essential to the parent intention of the annexation. All of these purposes for which the building is occupied. Page rules are discussed and their insufficiencies pointed 270.

out, either by our annotator, or by Bartley, C. J. in 7. They must be so firmly fixed to the real es- the case of Teaff v. Hewitt, except those laid down tate that they can not be removed without injury in that case. And these would very certainly exto the freehold from the act of removal and apart clude a large number of cases in which no one has from the substraction of the thing removed. ever disputed that the chattel becomes part of the Page 268.

freehold. 8. The test of a fixture is such an adaptation to

But in the absence of a recognized principle to the freehold that both will be less valuable if it is which these rules may be referred, it is impossible detached. Ed. of 1873, page 204.

to argue intelligently about their correctness, or to 9. Whether things attached to the freehold are have any such recognized law in regard to fixtures, fixtures depends solely on the intention with which

as will enable any one to have a reliable idea of they are erected, as gathered from what is said and

the rights in any case, the exact counterpart of done at the time when they are annexed, instead of

which has not been frequently decided, and albeing a conclusion of law from the acts of the

ways the same way, until they have been deterparties irrespectively of their intention, except in

mined by a lawsuit. It is, therefore, just as imso far as it is manifested by their acts. Page

portant as rights in regard to fixtures are valuable, 275.

that the question as to what are the fundamental 10. Actual annexation to the freehold and adap

principles of the law of fixtures should be distation to its purposes are insufficient to convert

cussed until they are ascertained. chattels into fixtures, unless they are fastened in

The question in every class of cases of fixtures such a manner as to show an intention to incorpo

but one is : Has one person done some act with a rate them permanently with the inheritance.

chattel which has passed the ownership of it, or Page 275.

some interest in it, from him to another? And in 11. The question depends upon: first, whether

that one class the question is: Has he done an act it can be easily removed integre salve et commode,

which will vest the title to it in his heir instead of or not, without injury to itself or the fabric of the

his executor? When the question arises as to building; secondly, on the object and purpose of

whether the ownership of a chattel has been passed the annexation, whether it was for the permanent

from one to another by any other lawful act by and substantial improvement of the dwelling in

which it can be passed, two questions always arise:

Did the language of the civil law, perpertui us's causa,

Has the previous owner done such an act? or in that of the year book, pour un profit de l'in

he do it with the intention of passing the title? heritance, or merely for a temporary purpose, or

If it be contended that the title has passed, by a for the more complete enjoyment and use of it as a

parol sale and delivery, the questions are: Was the chattel. Page 272–3.

chattel delivered? Was it delivered with the inIn the case of Teaff v. Hewitt, 1 Ohio St. 529, the

tention of consummating a sale? If it be confollowing rules are suggested:

tended that it was done by gift, the questions are: 12. First, actual annexation to the realty, or some

Was the possession delivered? Was it delivered thing appurtenant thereto. Second, application

with the intention of transmitting the ownership? to the use or purpose to which that part of the

If it be contended that it was done by written bill of realty with which it is connected is appropriated.

sale, the questions are: Was the paper voluntarily Third, the intention of the party making the an

executed by the former owner? And does it mani

fest the intention to deliver the property and nexation to make a permanent accession to the freehold; this intention being inferred from the

transmit the ownership? If it be contended that nature of the articles affixed, the relation and sit

it was done by will, the questions are: Was the nation of the parties making the annexation, and

will executed and verified as required by law? the purpose or use for which the annexation has

And does it manifest the intention to transmit been made. Page 274.

the ownership of the property to the claimant?

By analogy, then, when it is claimed that the ownFirst, it is the injury by removal to the value of the chattel, or its adaptation to its uses; then the

ership of a chattel has been passed to the owner of injury to its entirety or its value; then upon its

the freehold, by making the former a part of the latbeing attached with a view to the purposes of the

ter, the questions would be: Has the former owner realty; then upon its adaptation to those purposes ;

done such acts as may make it part of the freehold? then on its annexation and adaptation; then upon

Did he do it with the intention of making it so? the permanency of the chattel and its essentiality

No one can doubt that, in order to make a chatto the purposes of the realty; then upon the in

tel a part of a freehold, it is necessary to bring jury of removal to the entirety of the realty; then

about some sort of relation of propinquity between upon the injury to the value of both chattel and re

them. No one would suppose that a chattel could alty; then upon the apparent intention with which

be, by any sort of process, made part of real estate they are annexed; then nipon the actual intention

a hundred miles distant from it. And it is believed with which that is done; then upon whether it can that when the nature of this relation is ascertained, be removed without injury to either the chattel or

the question as to the intention grows naturally the freehold and the object and purpose of the free

out of it. hold, and lastly, upon the annexation, application

[To be continued.]

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