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 ordinary 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 he 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 Madison, 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 by 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

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 prejudiced 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 highway 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.

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.

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 $431, 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 gross sum paid for taxes on the several parcels

of land subsequent to issue of the certificates; failure to state the amounts paid on the respective parcels, if material, being the subject of motion to make more definite.

4. Provision of order overruling demurrer to complaint, limiting time to answer to 10 days and directing the case be put on the trial calendar for the then present term, is within the sound discretion of the court.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by E. L. Hunt against H. S. Miller, impleaded with others. From an order overruling demurrer of Miller to the complaint, he appeals. Affirmed.

Appeal from an order overruling a general demurrer to the complaint upon a tax deed, to bar former owners. The defects suggested are that in the copy of the tax deed, as set forth in the copy of the complaint served on this defendant, there was nothing to indicate the existence of the seal of the county board. Examination of that copy, which is in the records, shows that after the county clerk's signature is the device "[Seal]." The attesting clause contains the recital that the clerk has affixed the seal of the board of supervisors. Upon the copy of that deed set out in the original complaint on file, there was, in addition, a scroll inclosing the words, "Seal of the Board of Supervisors, Douglas County, Wis." It is further objected that the complaint, which was based on two separate certificates, states only the gross amount of taxes paid subsequently to the issue of the certificates, and does not disclose what amount was paid on each parcel. The order of the circuit court, overruling the demurrer without costs to either party, permitted the plaintiff instanter to correct the copy of the complaint which had been served on the defendant Miller, by inserting therein the scroll seal so as to conform it to the original complaint, and ordered that defendant answer within 10 days, and the case be put on the trial calendar at the then term of court.

Ross, Dwyer & Hanitch, for appellant. L. S. Butler and A. B. Ross, for respondent.

1.

DODGE, J. (after stating the facts). The argument in this court proceeded upon the assumption that the copy of the complaint served on the defendant Miller did not state a cause of action, because of absence of the county board seal on the deed therein set forth; and the contention of the respondent was to the proposition that nevertheless the demurrer was properly sustained, for the reason that the original complaint on file was not defective in that respect. We do not agree with this contention, but hold that, for the purposes of the demurrer, the copy of the complaint served on the defendant Miller is the document under consideration; that a party has a right to rely upon the copy of the pleading served upon him as a true copy; and that the party serving it is estopped from contending that the original paper differs therefrom,-predicating this view upon Knowles v.

Fritz, 58 Wis. 216, 16 N. W. 621. We therefore consider the copy of the complaint served upon the defendant Miller as the document demurred to.

The question raised by the general demurrer is whether the copy of the complaint delivered to this defendant fairly notifies him of facts claimed to exist sufficient to constitute a cause of action; and as no failure in that respect is pointed out, except the absence of any attempted fac simile of the seal of the county board from the copy of the deed as set forth in said copy of the complaint, the exact question is whether the complaint as served upon him notifies him that plaintiff claims title under a deed claimed to have been duly executed and sealed by the county clerk. The complaint alleges that the deed was "made, executed, and delivered to the plaintiff, by the county clerk of Douglas county, pursuant to law." The deed recites: "I, Christian Eimon, county clerk, have executed this deed, * * and affixed the seal of the board of supervisors." His signature is then indicated thus: "Chris. Eimon. [Seal.]" It was held by this court in Dolan v. Trelevan, 31 Wis. 147, that such allegations would suffice, even though no intimation, such as the letters "[L. S.]," or the word "[Seal]," or any attempted fac simile of the county board's seal, appeared on the copy of the deed set forth; for the reason that the recitation in the attestation clause sufficed to notify the defendant that the original deed was duly sealed. It is not necessary in this case to go so far as in that, for here, upon the face of the paper, defendant is notified that the deed bears some kind of a seal, and, by application of the liberal intendments accorded pleadings under our statute, it is fairly inferable that the seal so affixed is the seal required by law and referred to in the attestation clause.

2. The failure of the complaint to state specifically what parts of the $92.72 of subsequent taxes were paid upon the respective parcels of land, if material, at most served only to render the complaint obnoxious to a motion to make more specific. It is no ground for general demurrer.

3. The provisions of the order limiting the time for answer to 10 days, and directing that the case be on the trial calendar for the then current term, were within the sound discretion of the circuit court, in the exercise of which we discover no abuse. Order overruling demurrer affirmed.

PORTANCE v. LEHIGH VAL. COAL CO. (Supreme Court of Wisconsin. Jan. 10, 1899.) INJURY TO EMPLOYE-WARNING ASSUMPTION OF RISK-NONSUIT AND DIRECTION OF VERDICT.

1. A master who properly selects and instructs a man to give notice to the other employés of the movements of the apparatus in unloading coal from a vessel is not responsible for his failure to give warning.

2. A man of ten years' experience on coal boats, and who had worked for defendant three

or four months in unloading coal from vessels, will be held to have assumed the risk of any lack of precautionary regulations prescribed by defendant.

3. For the court, on motion to direct a verdict for defendant, to first announce "Nonsuit granted," and then withdraw that decision, and direct a verdict, is not error, the noon recess only having intervened, and there having been no change in the situation of the parties, and the jury not having been discharged.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Dellar Portance against the Lehigh Valley Coal Company. Judgment for defendant. Plaintiff appeals. Affirmed.

In August, 1896, the defendant was operating an extensive coal dock at the city of Superior, and the plaintiff was employed as a part of the gang unloading coal from a vessel. He had been employed on coal boats for about ten years, and at this work for defendant three or four months. The dock was equipped with much machinery, all operated by one engine, which was continuously in motion, operating, among other things, a shaft from which were moved drums to operate the buckets and scrapers used in unloading the vessel. The method of unloading was the lowering into the hold of the vessel of buckets, called "clam shells," which were seized by men in the hold of the vessel, and moved about so as to grasp a quantity of coal, and, when filled, were lifted and swung onto the dock. These buckets were raised and lowered by a man on the dock, known as the "hoister," who, by means of a lever, caused a drum to revolve, and wind up or unwind the rope holding the buckets. In the hold there was also a device, called a "scraper," which was dragged back and forth to scrape coal up to the hatches. It was moved by a rope from the dock, running through a pulley or block in the hold; and this rope was moved by means of a similar drum on the dock, set in motion or stopped by an employé on the dock, called the "scraper-man," by means of a lever connecting it with the shaft above mentioned. Besides the hoister and scraper-man above mentioned were a number of men, including the plaintiff, employed in unloading the vessel, all under the general direction and command of a foreman named Gill, who directed all similar work, and employed and discharged men. Among these employés was one specially designated as a "rigger," whose special province it was to put in place the tackle, ropes, and other apparatus when a vessel was to be unladen, and to keep watch of them, and adjust them from time to time, with the aid of such of the others as he might call to his assistance. There was also among these employés on the vessel a man known as the "hatch-man," whose duty it was to stand at a hatch, and communicate between the men in the hold and the hoister and scraper-man, who might not be in their sight. It was his duty to ascertain when the buckets were

ready to be hoisted, and signal the hoister, and to give signals with reference to the lowering of the buckets; also to communicate signals to the scraper-man whether to move or stop his machinery, and in what direction to move the scraper, which was out of his sight in the hold. It was also the duty of this hatch-man to notify the men in the hold of anything endangering them. When the rigger found it necessary to make any changes in the ropes or appliances aboard the vessel, it was for him to give the signal to the scraper-man on the dock to stop his drum; and the instructions to the scraper-man were positive not to start again until he received a signal from some of the men, which might come from the rigger himself, or from those working with him, or be transmitted by the hatch-man. On the occasion in question, the machinery had been stopped at the order of the rigger, who was attempting to raise a large block or pulley through which the scraper rope ran, to aid in accomplishing which the plaintiff was lifting on the block. While so lifting, and without any signal so to do from any one, so far as appears, the scraper rope suddenly started, and plaintiff's hand was drawn into the block, and injured. It was in evidence that the machinery never had started except by the scraper-man moving his lever. One of plaintiff's witnesses testified that the scraper-man started up the machinery at the time plaintiff got hurt. No notice was given to the plaintiff that the machinery was about to start.

At the close of the evidence, the defendant moved for direction of verdict in its favor. The jury were excused until 2 o'clock p. m. After argument the court announced, "The court grants a nonsuit." Exception was taken by plaintiff. The court then took a recess until 2 o'clock p. m. The record discloses the following: "2 p. m. In open court. Trial resumed. Jury present. Court orders nonsuit to be set aside, which was granted. Exception. Court directs a verdict in favor of the defendant. Plaintiff excepts." Thereupon the jury rendered a verdict in favor of the defendant. Plaintiff, on the same day, moved to set aside the verdict and for a new trial, on the grounds, among others, that it was error to direct a verdict after granting a nonsuit and dismissing the case, and for the reason that such verdict was against the evidence. Plaintiff appeals from judgment entered on the verdict.

Alexander Athey and O'Brien & Vaughn, for appellant. Ross, Dwyer & Honitch and L. T. Powell, for respondent.

DODGE, J. (after stating the facts). 1. The duty of a master to his servant is definite and clear. It is to provide him reasonably safe and proper tools, implements, and apparatus with which to work, reasonably competent and careful co-employés, and a reasonably safe place to work. These duties be

ing performed, the result of any accident must be borne by the servant. If he would seek to make the master liable, he must prove an omission or failure in some one of these three respects. The question therefore is whether the evidence in this case, given all the weight to which in any aspect it can be entitled, did establish any such failure. There is no claim or suggestion that the machinery or apparatus was defective either in character or repair. There is no suggestion that any of the co-employés were lacking in that character for skill and caution which is required, nor of any lack of care in the defendant or its representative in their selection. It is, however, strenuously argued that there was a failure in the defendant's duty to make the place of labor safe, in that notice or warning of the starting of the scraper machinery was not given to the plaintiff. The contention of the plaintiff below, and his principal contention in this court, was that the master, recognizing the necessity of providing for such warning as an element of safety of place, had employed a man, known as a "hatch-tender," for the purpose and with the duty, among others, of giving the warning, and whom it thereby constituted its representative or agent to perform the duty of giving warning for it, and that such hatch-tender failed to perform his said duty. He argues that this was a delegation to the hatch-man of a duty resting on the master, and, therefore, that the former's negligence is imputable to the latter.

This position involves a confusion of ideas. It is undoubtedly true that, when the employment is in its nature perilous, it is the duty of the master to provide reasonable and necessary precautions and safeguards against such perils, and that no delegation of that duty can relieve him from responsibility for failure to perform it. If injury to employés is to be apprehended from starting of machinery, or from passage of cars, as in Promer v. Railroad Co., 90 Wis. 215, 63 N. W. 90, and that danger can be avoided by reasonable precautions in the way of warning or otherwise, it may well be the duty of the master to make provision and give direction for such precautions; but, when he does so, he fulfills his duty. If reasonable care would require that a co-employé be provided to give warning, it would be necessary for the master to provide one; but, if he properly selected and instructed a competent man for that purpose, he would no more be responsible for a failure of the warning through negligence of such servant than he would for the result of the negligence in performance of any other duty by a co-employé. That is one of the risks assumed by the other servants. Dahlke v. Steel Co. (Wis.) 76 N. W. 362. This was the full scope of the decision of this court in Promer v. Railroad Co., supra. The only point there decided was that the question should have been submitted whether the company had prescribed sufficient regulations to guard against injuries to its employés from

moving about cars in its yards. Smith v. Railroad Co., 91 Wis. 503, 505, 65 N. W. 183. If there is anything in the opinion in that case which can be construed as holding that, after due and sufficient regulation providing for precautions by a fellow servant, his negligence could impose liability on the employer, such construction is contrary to the well-settled law of this state, and not intended in that case. The rule on this subject is well expressed and illustrated in Hartvig v. Lumber Co. (Or.) 25 Pac. 358: "As it is the duty of the master to furnish a reasonably safe place for his servant to work, it became the duty of the defendant company to provide such reasonable rule or regulation in the conduct of the business as would protect the men while engaged in their work at the foot of the chute. It required the defendant not simply to employ skillful and competent agents and employés in its service, but to adopt rules and regulations adapted to the dangerous nature of the business, so as to guard against accidents; in a word, to be vigilant in the use of means, and in the adoption of measures, to make the servants reasonably safe in their employment. To this extent the master assumes the risks, while the servant assumes the natural and ordinary risks incident to the business in which he is engaged, including those arising from the negligence of his fellow servants." The rule here announced does not at all infringe the other well-settled doctrine that in providing the safe place to work, as in building a scaffold or putting in place timbers to which tackle is to be attached (Jarnek v. Dock Co., 97 Wis. 537, 73 N. W. 62), the duty of the master is satisfied only by actual performance, whether he does the work with his own hands or through servants, even though the latter may also afterwards work with the plaintiff in the service, depending on the safety of such preliminary structures or appliances. See Cadden v. Barge Co., 88 Wis. 409, 417, 60 N. W. 800; Smith v. Railroad Co., 42 Wis. 520, 526.

In this case there is absolutely no evidence of any lack of precautionary regulations prescribed by the defendant; although, if such contention were made, it would be rendered immaterial by the fact, fully apparent, that the conditions were all the usual ones, and the defendant, a man of 10 years' experience in such service, had worked under them from the spring until August, and must be held to have assumed any risk therefrom. The injury in this case resulted, so far as the evidence goes, from the negligence of the scraper-man in starting his machinery without signal from the rigger, with whom plaintiff was working. If, as plaintiff contends, it also resulted from the omission of the hatch-man to give warning, no liability of the defendant results, for the hatch-man, as also the scraperman, were clearly fellow servants with plaintiff, all engaged in the common undertaking of unloading the coal from the same boat, and under common direction and command, with