some water from Chequamegon Bay at and prior to the sickness of Green?" "Was the defendant company guilty of negligence which was the proximate cause of the death of Green?" "Did the defendant know, or ought it reasonably to have known, prior to the time when the deceased contracted the disease from which he died, that the water it furnished deceased was contaminated by typhoid germs?" To each of these questions the jury answered in the affirmative. Thus, it will be seen, the right of plaintiff to recover was made to turn on whether defendant negligently failed to extend its intake pipe into pure water in Chequamegon Bay. As heretofore indicated, the mere fact of impracticability or impossibility of obtaining a pure water supply in the bay, if such were the facts, did not legally excuse defendant from knowingly distributing dangerously impure water for domestic consumption under such circumstances that persons of ordinary intelligence might probably use the same with dangerous consequences. But as that was not the theory of the pleaders in making up the issues for trial, or in the submission of their case to the jury, the case will be considered as the parties and the trial court considered it. Whether a judgment could be sustained under the complaint and findings of fact against the defendant on the other theory, is immaterial on account of the branch touching defendant's fault, which is to be considered hereafter.

Does the evidence warrant the finding that defendant failed to exercise ordinary care to procure a pure water supply from the bay? That, as indicated, is the key to plaintiff's case. We have searched the record from beginning to end, and read and re-read it with the greatest care, to find such evidence, and have failed. The point was raised in appellant's brief that no such evidence exists, and no reply thereto appears in the brief of respondent. No evidence is pointed out by them upon which the findings can rest. They evidently turned, if based on evidence at all, on an unsworn report of a chemist, based in part on an unverified report of an examination made by Vaughn, of the Michigan University, of several samples of water, one of which was taken from a point about 1,000 feet east of the breakwater, which point was about two miles from the pumping station. The samples were selected some time after the occurrence complained of. The one east of the breakwater was the only one found free from sewage contamination. The chemist who made the report did not place sufficient reliance thereon to recommend resorting for a supply to the place where, on the single occasion, pure water was found. He thought a supply might be found there with reasonable certainty, but expressed a preference for goIng outside the bay entirely. All the sworn evidence in the case shows that if pure water was found on one occasion at a particular place, that situation might or might not continue; that the bay water was so generally

contaminated with sewage, especially in the spring, that a safe supply could not be found there with any reasonable certainty. Dr. Hosmer said, if there was no current, there would be more protection; that towards Washburn, just before reaching the sewage on that side of the bay, was the safest place, but on account of the swinging currents one could not tell anything about it; that empty. ing so much sewage into the bay was sufficient to condemn it as a source of water supply without any test. Some tests were made of samples taken from different parts of the bay, one being near Houghton Point, several miles from the pumping station, that being the only one free from sewage contamination. One of the experts said that it was improper to take water for dietetic use from a body of water having no current, into which the sewage of a city was drained, unless the sewage delivery and the end of the intake pipe were many miles apart. There is a large amount of evidence of that character in the record, and nothing to controvert it. Further, it is shown that nearly a year prior to the death of Green, the officers of the city and the officers of the water company were of one mind as to the necessity of going outside the bay to get water suitable for domestic use. As early as February, 1893, an official report was made to the common council and adopted, to the effect that the intake pipe should be extended so as to take the water supply from the lake instead of the bay, and the city attorney was requested to draw a resolution formally directing the defendant to make such extension. In April thereafter, such a resolution was drafted by the board of health and adopted by the council, and thereafter an attempt was made to condemn the water supply and annul the defendant's franchise because it did not go to the lake with its intake pipe. It clearly appears all through the proceedings of the common council, for nearly a year prior to the death of Green, that all parties understood that the bay water was unsuitable for dietetic use. During all that time a contest existed between the municipality and the defendant as to whether the latter was obliged to extend the intake pipe into the lake, it being agreed that water free from dangerous pollution could not be obtained from the bay. That being the situation as to the primary parties to the contract, the situation could not be different as to private persons who became parties thereto by claiming the benefit of the contract. The verdict of the jury on the point here considered appears to be contrary to the evidence, and if a recovery on the record depends on that question, the verdict should have been directed for the defendant, and the judgment appealed from cannot stand. There is no explanation, it would seem, of the finding of the jury, consistent with the theory that it was based on evidence, except that they considered that regarding the filtration system, and did not mean to say that the water of the bay, without treatment by fil

tration, could at any point be depended upon as a safe source of supply.

It is further contended by appellant's counsel that the evidence conclusively shows contributory fault of deceased, precluding a recovery. As before indicated, if deceased drank the bay water with knowledge, or reasonable means of knowledge, that it was dangerously polluted with sewage, he took upon himself the risk and the plaintiff cannot recover, whether recovery be sought on the ground of deceit or negligence. The jury found specifically for plaintiff on that point, yet said by another finding that prior to the death of Green it was publicly and widely stated, and believed, among the citizens of Ashland, that the cause of typhoid fever epidemics in the city was the impure drinking water furnished by defendant. In view of the fact, which we deem uncontroverted by the evidence, that the water was impure, and that such condition had existed for a long time and was widely and commonly known, the findings referred to are inconsistent, there being no evidence explaining why the deceas ed did not know of that which was a matter of common knowledge in the community where he lived. Common knowledge of a fact raises a presumption that all persons of average intelligence have notice of it. That is elementary. Not only was there no proof to justify the jury in saying the deceased did not have reasonable ground to believe what they said was commonly known and believed, but there is much affirmative evidence to the contrary. He knew that the sewage of the city was drained into the bay, and that the defendant's water supply was taken therefrom. He was an intelligent, reading, working man. He took one of the city papers wherein the dangers of taking water from the bay were discussed. He had typhoid fever in his family six months before he was stricken, his wife being the afflicted party. She was attended by Dr. Hosmer, one of plaintiff's witnesses, who was thoroughly conversant with the condition of defendant's water supply, and who probably talked with the deceased on the subject, as he did with intelligent men generally, it being a matter of common talk. All these facts are in evidence. It is not deemed advisable to quote the evidence at length. Suffice it to say that the proof is overwhelming to the point that the bay water was dangerously polluted at the time Green was stricken with the fever, and that it had been in that condition, especially in the spring, for several years, that the facts in that regard were understood in the city generally, and had been the subject of discussion at public meetings and in the city council, and in the newspapers, and among the people for a long time. There is no evidence in the record to rebut the presumption that the deceased had notice of what was so commonly known. So we cannot escape the con clusion that the verdict of the jury on the subject of Green's contributory fault is without

evidence to support it, and that the contrary is established by the evidence. For this and the other reasons mentioned, the judgment appealed from must be reversed.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

HYER v. CITY OF JANESVILLE. (Supreme Court of Wisconsin. Dec. 16, 1898.) DEFECTIVE SIDEWALKS-DIRECTING VERDICT.

1. A few days prior to plaintiff's injury, caused by falling on a city sidewalk, it was covered with two inches of snow, which was packed hard and evenly by travel. The weather turned warm, causing the snow to melt, when it again froze, in the form of footprints, making it slightly uneven. Plaintiff, in passing over it, slipped and was injured. Held, that reasonable care did not require the walk to be scraped, or that mere footprints made and frozen in the soft snow should be removed by the city, and that the evidence did not entitle plaintiff

to recover.

2. In an action for injuries received from falling on a city sidewalk, the burden is on the plaintiff to show how and why the accident occurred; and where there is no direct evidence explaining its occurrence, and the circumstances are as consistent with the theory that it was ascribable to a cause not actionable as otherwise, it is the duty of the court to direct a verdict for the defendant, when requested.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Victoria Hyer against the city of Janesville for personal injuries caused by the insufficiency and want of repair of a sidewalk. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The insufficiency in the sidewalk alleged consisted of an accumulation of snow and ice, three to ten inches deep on the walk for the whole width and for a considerable length thereof existing for several weeks prior to the injury, to the knowledge of the street commissioner, worn by reason of travel thereon uneven and rough and formed into high ridges. The circumstances of the injury, as alleged, were that plaintiff, while traveling with due care, struck her foot against one of the ridges of snow and ice, and was thereby made to fall upon the hard, irregular surface of the walk, severely bruising her back and head, and otherwise injuring her. The answer put in issue the allegations as to the insufficiency of the walk and pleaded contributory negligence. The evidence showed that the walk had been uniformly cleared off whenever there was a fall of snow during the winter, except it was not cleaned down to the plank surface, there being left some snow which, by tramping, had accumulated quite evenly to the depth of about two inches; that while in such condition it became soft, and was tramped over, leaving footprints therein, when it froze, leaving the walk in a hubby condition, there being depressions all over it to the depth that footprints would naturally make under such conditions. One of the plaintiff's witnesses said the walk was kind of icy, with lumps big as

lt

one's fist; that it was hard to walk on, that it had been soft, and people had walked on it, and then it froze leaving little bunches. Another witness said the walk was made rough by people walking on the soft snow, leaving footprints which froze; that the Tuesday before the injury the walk was not that way; that the depressions in the surface were caused by the heels of shoes going down to the counter. There was considerable evidence of like character. Soon after the accident and before any material change had taken place in the walk, it was photographed and the result was produced in evidence, corroborating what has been stated, except the indentations in the walk were not sufficient to be clearly perceptible in the photograph. showed the walk covered with a thin coating of snow and ice, tramped to a uniform level for the whole width and not entirely smooth, but without irregularities, as stated, sufficient to be clearly perceptible in the picture. The evidence of how the accident occurred was that while plaintiff was walking on the sidewalk she suddenly fell backward, striking first on her hips, then on the back of her head near the top. The court was requested to direct a verdict in defendant's favor, which was refused. The jury rendered a verdict for plaintiff, on which judgment was rendered. There was a motion before judgment to set the verdict aside and for a new trial, which was refused, and the ruling duly excepted to.

F. C. Burpee and Wm. G. Wheeler, for appellant. Mahoney & Cunningham and J. A. Aylward, for respondent.

MARSHALL, J. (after stating the facts). Appellant contends that the trial court should have directed a verdict for defendant because of an entire failure of proof to sustain the allegations of the complaint, as regards failure of duty on defendant's part respecting the safety of the walk and that the injury complained of was occasioned thereby. The complaint states a case well within the authorities as to actionable failure of duty respecting sidewalks, by allowing an accumulation of snow and ice thereon in such form as to constitute an obstruction to public travel independent of a mere slippery or rough condition caused by ice and snow. It states that for a long time prior to the accident there was an accumulation of snow and ice from three to ten inches deep extending clear across the walk; that it was rough, uneven and in high ridges, and that such condition had existed for several weeks, but we look into the evidence in vain to find testimony to sustain such allegations. The most the evidence shows is that a few days before the injury there was a coating of about two inches in depth of snow, packed hard evenly over the walk by travel; that the walk had been in that condition for some time; that the weather turned warm causing the snow to become soft, wet and sloppy, and then suddenly turned cold, causing ice

to form with such footprints therein as would naturally be made by travel under such conditions. The bed of ice and snow three to ten inches deep, mentioned in the complaint, does not appear to have been observed by witnesses, nor the high ridges spoken of, nor the long-continued defective condition. True, the

evidence shows that the walk had not been entirely free from snow since soon after the commencement of the winter season, but it was free except as stated. A small amount accumulated from frequent falls of snow so that, in its tramped condition, it was about two inches deep. That did not in any way interfere with public travel, or constitute any obstruction to such travel, or defect in the walk. It was such an accumulation of snow as is usually found on walks in the resident portions of cities and villages in the winter season in this climate.

If the walk was defective at all at the time of the injury, it was wholly caused by the sudden freezing of the soft, slushy snow, spread evenly over it except as it was indented by footprints therein. Reasonable care did not require the walk to be scraped clean, down to the planking, or that mere footprints made in the soft snow and frozen in that condition should be removed. They did not cause any obstruction to or render travel on the walk dangerous, tested by the standard of reasonable safety under the circumstances. The furthest the courts have gone on this question is to hold that snow and ice allowed to accumulate on a walk in an uneven and ridgy condition so as to constitute an obstruction to public travel, renders it defective, and actionably so. Such was Koch v. City of Ashland, 88 Wis. 603, 60 N. W. 990, where snow had been permitted to accumulate upon the sidewalk until travel over it had formed a ridge 12 or 14 inches high, which was rough and slippery. Also West v. City of Eau Claire, 89 Wis. 31, 61 N. W. 313, where there was a high ridge of ice formed on the walk by the course of travel, combined with a defect in the walk itself by reason of there being a hole therein. In Perkins v. City of Fond du Lac, 34 Wis. 435, it was held that hard snow and ice spread evenly over the surface of a walk does not constitute a defect; and to the same effect is Grossenbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. 182; Chamberlain v. City of Oshkosh, 84 Wis. 289, 54 N. W. 618, and many other cases that might be cited, all going upon the ground that such a condition is so common and natural everywhere in this climate in the winter season, and the municipal authorities so powerless to prevent it, or, with any reasonable certainty, to remove it at all without great expense, that it would be exceedingly oppressive and unreasonable to require it. The test

of public duty is to be made by what is reasonable under all the circumstances. So it has been held that mere slipperiness, caused by the formation of ice evenly on a walk, or

a coating of snow and ice, may exist without constituting any defect in the walk inconsistent with full performance of public duty, and, necessarily, the same must be true as to what would necessarily and unavoidably follow from the existence of such a condition, that is, that the thin coating of snow would become soft in warm weather, then suddenly freeze, leaving a roughened surface caused by footprints. If some previous defect combine with the icy condition, then the situation is different, as in Beaton v. City of Milwaukee, 97 Wis. 416, 73 N. W. 53; or if by reason of use the walk becomes worn into a dangerously uneven condition, as in Paulson v. Town of Pelican, 79 Wis. 445, 48 N. W. 715. In Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186, we have a case quite like this. Snow accumulated evenly over the walk to the depth of several inches, then became soft, wet and sloppy, then suddenly froze hard, leaving the surface roughened by numerous footprints. In such situation the court said, in substance, that the walk presented no unusual appearance for cities in this variable and severe climate, and caused no more of an obstacle to reasonably safe passage of pedestrians than frequently exists in cities and villages during the cold season; and we may add, than may reasonably be expected by any person of average intelligence. A municipality could no more be expected to guard against the mere rough condition of a walk, caused by the sudden freezing of a thin coating of soft and sloppy snow thereon, than against the slippery condition caused by a smooth surface of ice on the walk.

On the subject of how the accident occurred the evidence is entirely silent. Plaintiff says she must have struck her heel against one of the lumps of ice and slipped and fell backward. That of course was not only an unreasonable conclusion from the situation, but was not evidence in the case to properly be considered by the jury. The effect of plaintiff's evidence is simply that while she was passing along the walk she suddenly fell backward and received the injury of which she complained. On that, and the evidence as to the rough condition of the walk, it was left to the jury to say whether plaintiff merely slipped upon the icy surface of the walk because of its general slippery condition, or was caused to fall by her feet coming in contact with an obstruction in the walk which rendered it defective and unsuitable for public travel. From the fact that the fall was backward, and there was nothing to indicate that it was caused by striking any obstacle in the walk, the theory that plaintiff's feet slipped forward on the icy surface is much more reasonable than any other that can be based on the evidence. If the fall were caused by the mere slippery condition of the walk it is conceded that there would be no right to recover for the injury received. It has been said by this

and other courts repeatedly, and is the established law, that a jury cannot properly be allowed to determine disputed questions of fact from mere conjecture. There must be some direct evidence of the fact, or evidence tending to establish circumstances from which a jury would be warranted in saying that the inferences therefrom clearly preponderate in favor of the existence of the fact, else the question should not go to the jury for determination at all. To allow a jury to reach a conclusion in favor of the party on whom the burden of proof rests, by merely theorizing and conjecturing, will not do. There must at least be sufficient evidence to remove the question from the realms of mere conjecture, else the trial court should pronounce the judgment of the law on the situation by taking the case from the jury when requested so to do. Sorenson v. Pulp Co., 56 Wis. 338, 14 N. W. 446; Smith v. Railway Co., 42 Wis. 520; Morrison v. Construction Co., 44 Wis. 405; Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642; Finkelston v. Railway Co., 94 Wis. 270, 68 N. W. 1005; Cawley v. Railway Co. (Wis; not yet officially reported) 77 N. W. 179; Asbach v. Railway Co., 74 Iowa, 248, 37 N. W. 182; Railroad Co. v. Schertle, 97 Pa. St. 450; Tyndale v. Railroad Co., 156 Mass. 503, 31 N. E. 655; Baulec v. Railroad Co., 59 N. Y. 357; Hughes v. Railroad Co., 91 Ky. 526, 16 S. W. 275.

In a case like this it is incumbent upon the plaintiff to show by evidence, with reasonable distinctness, how and why the accident occurred. Morrison v. Construction Co., supra. To present two or more states of a case upon which a jury may theorize as to the real cause of the accident, putting one conjecture against another and determining which is the most reasonable, comes far short of making a case. Hayes v. Railroad Co., 97 N. Y. 259. An examination of the numerous authorities cited will disclose that the principle of law does not admit of question or exception, that where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to guess where the truth lies and make that the foundation for a verdict. As said in effect by the learned court in Railroad Co. v. Schertle, supra, the direct effect of such a course of procedure would be to take the property of one person and pass it over to another by the mere form of law, ignoring the principles essential to make the administration of law and the administration of justice identical. The evidence here comes far short of what is said in many of the authorities cited to be clearly insufficient. The theory that plaintiff fell by reason of the walk being uneven is not as reasonable as that she fell because of its being merely slippery.

The conclusion reached is that there was a failure of proof as to the sidewalk being defective, and also a failure of proof as to whether plaintiff fell and received her injury by reason of the alleged defects in the walk. Hence, the court should have taken the case from the jury by directing a verdict in favor of the defendant, and for the same reason should have set the verdict aside and granted a new trial.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

1. Laws 1880, c. 105, making foreign accident insurance companies "subject to the same fees and taxes as are now paid by fire insurance companies doing business in this state," which fees. as fixed by Rev. St. 1878, § 1219, consist of 2 per cent. on the annual income, does not affect the obligation of foreign accident insurance companies to pay the license fee of $300 imposed on them by section 1220.

2. In view of Rev. St. § 1955, requiring the insurance commissioner to revoke the license of a foreign accident insurance company for failing to comply with the laws applicable to it, mandamus will not lie to compel him to issue a license to such a company which has failed to pay the annual fees for past years required by Rev. St. 1878, § 1220, though limitations would preclude a recovery of such fees.

Appeal from circuit court, Dane county. R. G. Siebecker, Judge.

Petition for mandamus, on the relation of the Fidelity & Casualty Company of New York, against William A. Fricke, commissioner of insurance. Judgment for defendant, and relator appeals. Affirmed.

The relator, the Fidelity & Casualty Company of New York, filed its petition for an alternative writ of mandamus in the circuit court of Dane county, claiming that the defendant, as commissioner of insurance of this state, unlawfully refused to issue it a license to do business in this state for the year 1898. The alternative writ was issued, and due return made thereto. The issue joined was tried by the court, and his findings thereon may be summarized as follows: The relator is a corporation organized under the laws of the state of New York, and authorized to do the business of accident insurance. The company first applied to do business in this state in 1880, and each year since has applied for and received license to transact business in this state, up to March 1, 1898. Each year it has paid to the state treasurer 2 per cent. of its gross income earned in this state, and has complied with all the requirements imposed by the laws of this state, except that it has not paid the annual license fee of $300 required by section 1220, Rev. St. 1878. No

demand was ever made upon said company for such fees prior to November, 1897, at which time the defendant made such demand, and required as a condition for renewing its license, which would expire on March 1, 1898, that it pay an annual license fee of $300 for each year it had done business in this state, with interest at the legal rate on each such license fee from the date it became due. The company refused to pay such fees or any part thereof. The amount of such fees on March 18, 1898, with interest, was $9,076.70. The company applied for license for the year 1898, but the defendant refused to issue one, because it had failed to pay the license fees above mentioned. Under this state of facts the court concluded that the relator was an accident insurance company, within the meaning and purview of chapter 105, Laws 1880, and section 1220, Rev. St., and not entitled to a license to transact business in this state until it had paid all back license fees before mentioned, with interest, and that upon such payment, and not otherwise, the peremptory writ might issue. The judgment entered upon such findings is sought to be reversed on thisappeal.

Winkler, Flanders, Smith, Bottum & Vilas. for appellant. W. H. Mylrea and J. L. Erdall, for respondent.

BARDEEN, J. (after stating the facts). The facts at issue in this litigation are very much the same as were involved in the cases of Travelers' Ins. Co. v. Fricke, 94 Wis. 258, 68N. W. 958, and Id., 74 N. W. 372. In those cases the company had paid the $300 license fee, and not the 2 per cent. on its gross earnings. In this case the relator had paid the 2 per cent. on its income, as required by chapter 105, Laws 1880, but has not paid the $300 annual license fee imposed by section 1220, Rev. St. 1878. In his brief, counsel for relator, after reviewing the facts involved in the former litigation, said, "The question, therefore, whether an accident insurance company organized under the laws of another statewas, after chapter 105 of the Laws of 1880, required to pay $300 per annum in addition to the 'fees and taxes' thereby imposed, although discussed, has not been adjudicated by this court." Pursuant to this statement, counsel has submitted a vigorous and carefully prepared argument in his brief, and pressed the same with great vehemence at the bar, as to the construction this court ought to give to the statute mentioned. The earnestness of the counsel, and the importance of the questions involved, have induced us to carefully review the former litigation, and the questions therein determined. We find it entirely unnecessary to attempt to justify those decisions. They represent the deliberate judgment of the court, after a careful and exhaustive argument and consideration of all of the questions involved. The suggestion of counsel that the construction of the statutes