was so located as regards the traveled track and of such a character as to constitute an actionable defect in the highway, and whether the town officers were chargeable with knowledge of its existence. There was evidence tending to show that the stump was five to six inches from the right wheel track, was eight inches high, and seven to eight inches in diameter, and there were indications that it bad been run over by wagon wheels before. There was evidence tending to show that there was a mudhole in the road near the stump and that about as the horse arrived at the place of the accident he swerved to the right to avoid the mudhole, thereby running the right wheel out of the wheel track a sufficient distance to strike the stump. There were some rulings on request to instruct the jury, and some exceptions taken to refusals to instruct. On the argument plaintiff's counsel was permitted, against objection by defendant's counsel, to read a portion of the opinion of this court in Wheeler v. Town of Westport, 30 Wis. 392. The verdict was for plaintiff, which defendant's counsel moved the court to vacate as unsupported by the evidence. The motion was denied and due exception was taken to the ruling. The appeal is from the judgment rendered on the verdict in plaintiff's favor.

Harlow Pease, for appellant. R. B. Kirkland, for respondent.

isted since the original construction of the road. Held:

1. The following instruction to the jury was proper: "If the town officers knew, or by the exercise of ordinary diligence ought to have known, that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of such care drove against it and was injured, the town is liable."

2. The character of the defect and the length of time it had existed were entirely immaterial except as clearly covered by the instruction.

3. The defect having existed from the time of the original preparation of the highway for public use, the town was bound to have known of its existence. Proof of notice to the town officers was not required.

4. The defect not being so far outside the traveled track that a traveler would have been obliged to have actually left such track in order to have reached it, it could not be said as a matter of law that it did not render the highway actionably defective.

5. The following instruction was proper: “You are allowed to give such damages for bodily pain and mental anxiety as you believe the plaintiff is justly entitled to recover," in connection with the instruction that, “The damages should be no greater and no less than you believe from the testimony the plaintiff is entitled to receive.” the idea being that the assessment of damages should be made solely upon the testimony produced on the trial.

6. The mere accidental deviation from the traveled way, by the swerving of the horse to one side of such way to avoid a mud puddle, or deviation because of the natural inclination of the horse to travel in one of the foot puths instead of on the crown of the road, thereby causing the wheels to run outside the track for a few inches, does not come within the rule that if a person, for his own convenience and without cause, drive outside the way prepared for trav. el, and thereby reach an obstruction in the road and receive an injury, the municipality is not liable.

7. It is improper for counsel in a case to read law or other books to a jury, and a trial judge ought firmly to prohibit it; but if he fail to do so, the error must be regarded as harmless unless it clearly appear that the objecting party was prejudiced thereby.

(Syllabus by the Judge.)

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by Eliza Boltz against the town of Sullivan. Judgment for plaintiff. Defendant appeals. Affirmed.

Action to recover compensation for personal injuries. The evidence, following the allegations of the complaint, showed that plaintiff while traveling on a road in the daytime, in a roadcart drawn by one horse driven by her son, was thrown from the seat upon the dashboard and the left wheel, and seriously injured by reason of the right wheel of the roadcart striking a small stump that was concealed in the weeds a short distance outside of the right-hand wheel track. The road was an ordinary country turnpike. The tree was cut before the grading was done, and the stump, by the grading, was partially buried beneath the surface. The weeds grew up around it along the side of the road so that it was not readily observable by a traveler circumstanced as plaintiff was. The controverted questions of fact on the trial were whether the stump

MARSHALL, J. (after stating the facts). The jury was instructed in substance that, if the town officers knew, or by the exercise of ordinary diligence might have known, that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of ordinary care drove against it and was injured, the town is liable. That appears to be faultless, but appellant's counsel complains of it, because it ignored the character of the defect and the length of time it may have existed, relying upon some language used in the opinion in Cooper v. City of Milwaukee, 97 Wis. 458, 72 N. W. 1130. The point there considered was whether the court erred in instructing the jury to answer in the affirmative an interrogatory as to whether the officers of a municipality were guilty of negligence in respect to failing to repair the alleged defect, “if the sidewalk at the point in question was defective, and the jury finds the city officers knew or ought to have known in the exercise of proper care of the existence of such defective condition, in the absence of evidence tending to show that any steps were ever taken to remedy it." Following that is language in the opinion which the learned counsel here seeks to apply to his situation, and not without some reason. The following is the language: “This instruction was given without respect to the length of time the defect had existed, or its character." Following that are observations quite likely to

the whole width of the highway in a safe condition for public travel; that if it prepare a sufficient space for that purpose its duty is fully performed, and if even the road be too narrow, yet the traveler leave the traveled track without cause and thereby reach a defect and receive injury thereby, the town is not liable. That is good law but does not appear to apply to this case. The stump was so near the traveled track that it was not necessary for the vehicle to really leave the road or course of travel in order to reach it, therefore it was at least a question for the jury to say whether the defect was actionable or not by reason of its being sufficiently near the traveled track to render the use of the space prepared for travel dangerous for persons using the same in the exercise of ordipary care. Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656. The evidence strongly tends to show that the defect was so near the wheel track that a mere shying of the horse or his swerving to one side for an instant, or traveling on one side as a single horse is quite liable to do, and at least without negligence on the part of the driver as a matter of law, was liable to cause the wheel to strike it with dangerous results to the occupants of the vehicle. The evidence tends to show that such was the way in which the accident happened. The trial court could not say as a matter of law that the case was within the rule that where a person voluntarily diverges from the traveled track without reasonable cause he assumes the risk of his conduct. There is evidence here that the horse suddenly shied or swerved to the right-hand side of the road in order to avoid a mudhole and thereby ran the right wheel a few inches outside of the wheel track and against the stump.

What has been said covers all the assignments of error made by appellant's counsel, except that the court permitted plaintiff's counsel to read to the jury an extract from the opinion of Chief Justice Dixon in Wheeler v. Town of Westport, 30 Wis. 392. That was objected to and the court, after ruling that it was improper, said, in effect, that the reading might proceed as a part of the argument of plaintiff's counsel, but at his peril. We should say here in passing, with due respect for the learned judge who presided at the trial, that for the instant be hardly met with proper judicial firmness the situation presented. The reading proposed was not proper. The court appreciated that fact and so ruled, and then laid aside for the moment that judicial order which should at all times govern a trial, and informed counsel that he might put error into the record if he chose but must take the consequences. It is permissible and excusable for courts to err if done honestly and inadvertently. All do it, none are infallible; but duty to litigants and the careful administration of the law are inconsistent with knowingly permitting, against proper objections, improper conduct on a trial at any point, even if the trespasser upon the rules be willing to

take his chances on the result in his favor being disturbed because of such conduct.

The reading of legal opinions or the law as laid down by text-writers, or reading from other books or papers, for the purpose of influencing a jury in a case on trial is generally held to be improper. Facts are to be established by evidence given in court from the mouths of witnesses, or depositions taken out of court, or papers and records and things properly produced. The law applicable to the case is to be pronounced by the trial court upon the bench. The arguments of counsel to the jury are to be confined to reasoning, and the drawing of deductions from the evidence in the light of the law as counsel assumes the court will pronounce it. In that light he is to reason from the evidence as to the facts which, to his mind, such evidence establishes, and which the jury should say it establishes. The following authorities may be referred to, among the numerous decisions of courts on the subject of reading from law books and the decisions of courts, or other books, to juries: Baker v. City of Madi. son, 62 Wis. 137, 22 N. W. 141, 583; Mullen v. Reinig, 72 Wis. 388, 39 N. W. 861; Boyle V. State, 57 Wis. 472, 15 N. W. 827; Ashworth v. Kittridge, 12 Cush. 193; Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882; Com. v. Sturtivant, 117 Mass. 122; Com. v. Brown, 121 Mass. 69; Whiton v. Insurance Co., 109 Mass. 24; Huffman v. Click, 77 N. C. 55; Gregory's Adm'r v. Railroad Co., 37 W. Va. 606, 16 S. E. 819; Railway Co. v. Wesch (Tex. Civ. App.) 21 S. W. 62; Steffenson v. Railway Co., 48 Minn, 285, 51 N. W. 610; Railway Co. v. King, 88 Ga. 443, 14 S. E. 708; Williams v. Railway Co., 126 N. Y. 96, 26 N. E. 1048; Humbarger v. Carey (Ind. Sup.) 44 N. E. 302; Stratton v. Dole (Neb.) 63 N. W. 875; Telegraph Co. v. Teague (Tex. Civ App.) 27 S. W. 958; Publishing Co. v. Mc Donald, 11 C. C. A. 155, 63 Fed. 238; Dilling ham v. Wood (Tex, Civ. App.) 27 S. W. 1074; Wolf v. Shannon, 50 Ill. App. 396; Edwards v. Common Council of Village of Three Riv. ers, 96 Mich. 625, 55 N. W. 1003.

It will be seen by an examination of the cases cited that while the reading of law to a jury is generally condemned, it is generally held not reversible error unless the jury be thereby prejudiced, or it appear clearly that such was probably the effect. That is obviously the rule that should govern here in view of section 2829, Rev. St., which provides that the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect a substantial right of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect. The significance of that provision has often been referred to be this court. Dixon, C. J., in Decker v. Trilling, 24 Wis. 610, observed that it is a beneficent statute and cures a multitude of errors, as numerous cases in which it has been acted upon by this court WENTWORTH V. RACINE COUNTY. (Supreme Court of Wisconsin. Jan. 10, 1899.)

APPEAL-FindingS. Findings that are not excepted to are verities in the case.

On motion for rehearing. Mandate modified.

For former opinion, see 74 N. W. 551.

will show; and in Pooler v. State, 97 Wis. 627-638, 73 N. W. 336, it was remarked that the intent of the statute should always be recognized and given its legitimate effect to the end that justice be made certain and speedy instead of being unnecessarily delayed and made burdensome to parties by disturbing judgments, where a complaining party has in no way been prejudiced as to any substantial right.

Looking at what counsel for respondent read to the jury, which is the subject of the assignment of error, we are unable to see clearly how appellant could have been prej. udiced thereby. There was first a correct statement of the legal test of liability for negligence, which was followed by a substantially correct quotation from the statute as to the liability of towns to persons injured while traveling on public ways, if injured by the insufficiency thereof; then a correct statement of the duty of towns to make and keep their highways reasonably safe, and that a bighway is not sufficient if not reasonably safe; then followed an accurate quotation from Chief Justice Dixon's language in the Westport Case as to conditions, naming them, which may render a highway insufficient under some circumstances and not under others, closing with the words: “It is with respect to conditions and considerations like these, and others which will readily suggest themselves, that highways are stated to be safe and sufficient, or unsafe and insufficient, according to circumstances." If the counsel had argued that, as a matter of common sense and common knowledge, the considerations named were the proper tests of the sufficiency of a highway, and put the statement of the law on counsel's assumption as to its correctness, and as to what the court would instruct the jury from the bench, and made his deductions from all the evidence from premises thus stated, it would not be claimed, we apprehend, that such conduct constituted reversible error if error at all. The mere fact that the same language was used by quoting from a legal opinion cannot be said to so far change the situation as to constitute prejudicial or reversible error, inasmuch as all that was said, if stated as the language of the counsel, legitimately applied to the case. By this we by no means approve the proceeding of the trial court. We disapprove of it, yet it is one of many matters liable to occur in trials, which, though out of harmony with correct methods, do not warrant punishing parties by reversing their judgments. This court can go no further in such situations than to express disapproval and hold the error harmless, leaving trial courts to make their own standard of strictness as to the observation of settled rules and methods of procedure in conducting trials, so long as no substantial right of a complaining party be injuriously affected thereby.

The judgment of the circuit court is affirmed.

PER CURIAM. A motion for rehearing is made by respondent in this action for the purpose only of obtaining a modification of the mandate so that it shall provide for the entry of a judgment in respondent's favor for $83.22 which he claims he is entitled to recover, even conceding that the statute in question be valid. Examination of two of the findings of fact made by the circuit court, and not excepted to by the appellant, shows that the respondent is correct in his contention. By the fourth finding of fact it appears that the county board disallowed a gross sum of $514.22 of the respondent's bill, and by the seventh finding it is found that the correct amount of the disallowance, as shown by examination of the itemized bill, and conceding that the general principle upon which they acted was correct, was $431, and no more; evidently meaning that, if the rates fixed by the resolution of the supervisors be applied to the items of respondent's bill, the gross amount disallowed should have been only $131, instead of $514.22. As said before, these findings are not excepted to, and hence are verities in the case. It is proper to say that no mention was made of this fact either in the printed briefs or upon the argument of the case, but the efforts of counsel were concentrated upon the consideration of the validity of the law and the resolution of the board alone, and hence the facts herein stated naturally escaped notice. The mandate of the court will be modified so as to read as follows: "Judgment of the circuit court reversed, and cause remanded, with directions to render judgment for respondent for $83.22.” In all other respects the motion for rehearing must be overruled, without costs. It is so ordered.

HUNT v. MILLER et al. (Supreme Court of Wisconsin. Jan. 10, 1899.) COMPLAINT-DEMURRER-SEAL-DISCRETION Tax

DEED. 1. For purposes of demurrer, the copy of complaint served on defendant, and not the original on file, will be considered.

2. A complaint on a tax deed, alleging that it was executed by the county clerk pursuant to law, and setting out a copy reciting. “I, county clerk, have executed this deed, and affixed the seal of the board of supervisors,” followed by his signature, with the word "[Seal],' sufficiently shows that the proper seal was affixed.

3. A complaint on a tax deed, to bar former owners, is not demurrable because stating a gross sum paid for taxes on the several parcels