Odegard v. North Wis. L. Co. 130 Wis. 659. The error in refusing the tenth requested instruction is emphasized by the fact that the court in its general charge on the subject of the burden of proof gave only the positively erroneous charge that each question "must be answered according to the preponderance of the whole evidence and all the circumstances of the case." Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077. Another instruction was asked upon the subject to the effect that disputed questions of fact could not be determined upon mere conjecture, but that there must be some direct evidence of the fact or evidence tending to establish circumstances from which the jury could reasonably say that the inferences therefrom clearly preponderate in favor of the existence of the fact. This instruction is inaccurate, in that it requires a clear preponderance of the evidence in order to justify a finding. This is not the rule in civil actions, except in cases of alleged fraud or actions brought to set aside solemnly executed written instruments. Another requested instruction was to the effect that the jury could not find the engineer, Lee, incompetent from the fact that he may have been guilty of one or more isolated acts of negligence. This was too broad a statement. Proof of a single act of negligence is not sufficient to raise an inference of incompetence (Kliefoth v. N. W. I. Co. 98 Wis. 495, 74 N. W. 356), but proof of many such acts may, and the instruction might easily be construed as meaning that incompetence could not be inferred from proof of many acts of negligence. The following instruction was asked, and seems to contain a substantially correct statement of the law (Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124): "(8) You are instructed that the duty of the defendant was to use ordinary care and diligence in respect to employing competent servants, having regard always to the character of the particular service and the consequences that might result Odegard v. North Wis. L. Co. 130 Wis. 659. from incompetency in such service. If the defendant exercised such care and diligence in retaining in its employ Reodor Lee at the time of the accident, the defendant was not guilty of negligence in so doing, notwithstanding the fact that Reodor Lee may have been incompetent at such time, and notwithstanding the fact that an injury to the plaintiff may have resulted by reason of such incompetency." However, as the instruction was general and does not apply to any question of the verdict, the refusal to give it was not error. An instruction to the effect that, if Lee reversed the lever and caused the carriage to run towards the saw just prior to the accident, the jury could not find that negligence in the construction of the steam feed was the proximate cause of the injury, was properly rejected, for the reason that, as before indicated in this opinion, we think the evidence was sufficient to take to the jury the question whether the alleged sticking of the valve was not instrumental in producing Lee's failure to reverse the lever in proper time. Upon the question of proximate cause the court instructed the jury that it was "the immediate, direct, actual, natural, efficient, and real cause.' This was inaccurate but not prejudicial, because it placed a heavier burden on the plaintiff than the correct rule, which has so often been laid down by this court that we do not repeat it here. Moreover, the elements of fact constituting proximate cause having been found in answer to specific questions, an inaccuracy in the definition is not harmful. Upon another trial, however, if a definition be given it should be the correct one. A claim is made that the verdict is excessive, but we are unable to so regard it. We find no other contentions that require discussion. By the Court.-Judgment reversed, and action remanded for a new trial. INDEX. ABANDONMENT. See LANDLORD AND TENANT, 2. ABATEMENT. See INSURANCE, 8, 9. ABUSE OF DISCRETION. See COSTS, 2, 8. REFORMATION OF INSTRU MENTS, 2. ACCEPTANCE. See SALES, 1, 5. TRIAL, 3. ACCIDENT INSURANCE. See INSURANCE, 16. ACCORD AND SATISFACTION. 1. The part payment of an admitted debt is no consideration for an agreement not to enforce the collection of the balance of the debt. Weidner v. Standard L. and Acc. Ins. Co. 10 2. In an action on an insurance policy the answer admitted that a certain sum was due plaintiff under a clause in the policy, denied other liability, and pleaded the payment of the admitted sum as an accord and satisfaction. Held, that the payment of what the defendant admitted to be due and payable was not a consideration for the alleged settlement of the claim controverted by the defendant. ACCOUNTS. See LIMITATION OF ACTIONS, 15, 16. ACQUIESCENCE. See CORPORATIONS, 6. ACTION. Ibid. Limitations. See CORPORATIONS, 11-14. EXECUTORS AND ADMINISTRATORS, 13. INJUNCTION, 1. LIMITATION OF ACTIONS. TAX TITLES, 3-5. Conditions. See BILLS AND NOTES, 1-4. EQUITY, 1, 2, 4. INSURANCE, 3, 8-10. LIMITATION OF ACTIONS, 1-6. At law or in equity? Adequate remedy. See EQUITY, 1-3. INTOXICATING LIQUORS, 2. LIMITATION OF ACTIONS, 12. Independent action. See JUDGMENTS, 4-8. Abatement. See INSURANCE, 8, 9. Foreign cause of action. See LIMITATION OF ACTIONS, 6. ADVICE OF COUNSEL. See MALICIOUS PROSECUTION, 1, 2. AGENCY. See FALSE IMPRISONMENT. HUSBAND AND WIFE. INSUR ANCE, 4, 5. PAYMENT, 2. SALES, 17, 18. TRUSTS AND TRUSTEES, 1. WITNESSES, 2, 3. ALIENATION. See BANKRUPTCY, 1-5. DEEDS. EQUITY. EVIDENCE, AMENDMENT. Of pleading. See EXECUTORS AND ADMINISTRATORS, 14, 15. INTOX- ICATING LIQUORS, 6. Of proofs of loss. See INSURANCE, 8-10. 1. In an action for personal injuries to a traveler on a highway in consequence of his horse becoming unmanageable by being frightened by a dog, under the evidence, stated in the opinion, it was held that a verdict for defendant could not be disturbed. Nolan v. Kroening, 79 2. In such case instructions to the jury, stated in the opinion, are held to be free from error. Ibid. 3. In an action for personal injuries inflicted on plaintiff by defendant's bull after its escape from defendant's premises onto the adjoining premises of plaintiff, a verdict of $800 for plaintiff is held supported by the evidence, and is neither perverse nor excessive in amount. Hadtke v. Grzyll, 275 4. In such case evidence that the bull had broken through the fence into plaintiff's premises on three previous occasions during the same summer is admissible as tending to show that the defendant "suffered" the bull to be at large. Ibid. 5. Sec. 1482, Stats. 1898, as amended by ch. 14, Laws of 1903, does not impose an absolute liability upon the owner of the animal. Ibid. 6. Sec. 1482, Stats. 1898, as amended by ch. 14, Laws of 1903, differentiates between "the running at large" and "the escape." It is the escape alone which is inexcusable by showing diligence, not the running at large. Ibid. 7. Sec. 1482, Stats. 1898, as amended by ch. 14. Laws of 1903, does not impose liabilities upon the owner of the animal which are so unreasonable and extreme as to be beyond the limits of police power. Ibid. ANTICIPATION. See RAILROADS, 7, 8, 13. APPEAL AND ERROR. Decisions reviewable: Appealable orders. See DISCOVERY, 3. 398 2. An order striking out a demurrer as irregular is not appealable. Steinberg v. Saltzman, Right to review: Persons entitled. See OFFICERS, 2. WILLS. 419 ( |