August, and September, 1887. On the necessary affidavit and undertaking an order of attachment was issued against defendant, and his property seized in attachment, but by stipulation between the parties the attachment was discharged. On the 23d of November, 1887, the defendant filed his answer to the plaintiffs' petition. On July 9, 1889, defendant filed an amended answer and cross petition, setting up that he contracted with plaintiffs to grade one mile of roadbed on the Chicago, Kansas & Nebraska Railway in Ford county, Kan., near Kingsdown, designated as "Section 354"; that he fully complied with his contract, and there was still a balance due him from plaintiffs for such work, the sum of $2,913.78; and, as a second cause of action against the plaintiffs, that they are indebted to him in the sum of $144.80 for money had and received by plaintiffs for the use and benefit of defendant; and prayed judgment against the plaintiffs on the two causes of action for the sum of $3,058.58. To this answer and cross petition the plaintiffs, for reply, denied all the allegations of indebtedness to defendant. On the 17th day of October, 1889, by agreement of all the parties, this action was referred to one W. R. Brown, referee, for the purpose of takIng the testimony, and reporting findings of facts and conclusions of law to the court, to be tried by the referee on three days' notice by either party; that said case was tried before the referee at Dodge City, Kan., and afterwards, on the 19th day of May, 1890, the referee made his findings of facts and conclusions of law, in writing, and reported the same to the court, and recommended that judgment be entered for the defendant against the plaintiffs for the sum of $761, with interest from the commencement of this action at 7 per cent. per annum, and for costs of suit. On the 19th of May, 1890, the plaintiffs' attorney wrote a letter to the referee, asking him to put in a general exception for plaintiffs to his report, so as to save the praintiffs' rights so they will not be entirely lost in the matter. The referee allowed this as a general exception to his report. On the 21st of May, 1890, the defendant, by his attorney, filed his motion in writing, asking the court to enter a judgment against the plaintiffs therein in accordance with the report of the referee filed in said action, and on the 23d day of May, 1890, the parties all being present by their respective attorneys, and the report of the referee coming on to be heard on the motion of the defendant for judgment in accordance with the findings and recommendations of said referee, the court thereupon rendered a judgment against the plaintiffs and in favor of the defendant in accordance with the findings and recommendations of the referee, to which the plaintiffs, by their counsel, excepted, and the exception was noted by the court, and the plaintiffs were given 60 days' time to make and serve a case for the supreme court, and defendant given 10 days to v.41p.no.9-63

suggest amendments thereto, and same to be settled on 5 days' notice. No case was made, but the plaintiffs bring the case to this court on a certified transcript of the pleadings and the report of the referee.

Charles H. Toll and D. V. Burns, for plaintiffs. John N. Ives, for defendant.

JOHNSON, P. J. (after stating the facts). This action was commenced by the plaintiffs in the district court of Ford county to recover from the defendant the sum of $304, for money overpaid by plaintiffs to him for work done as subcontractor in the construction of one mile of roadbed on the Chicago, Kansas & Nebraska Railway in Ford county, Kan., in 1887. An order of attachment was issued on the commencement of the action, and defendant's property seized by the sheriff, but the attachment was afterwards discharged by agreement of the parties. The defendant filed an answer to the petition of the plaintiffs, denying any indebtedness to them, and also a cross petition, demanding judgment against the plaintiffs for the sum of $3,058.58 as a balance due for work done under contract with plaintiffs as a subcontractor in the grading of one mile of roadbed on the Chicago, Kansas & Nebraska Railway in Ford county, Kan., in 1887. After issue had been joined by agreement of all the parties, the action was referred to a referee for the purpose of taking the testimony and reporting his findings of facts and conclusions of law to the court. The case was heard before the referee, who made findings of facts and conclusions of law, and reported the same to the court. The plaintiffs made the following exception to the finding of the referee: "I will ask you to put in a general exception for us, so that our rights will not be entirely lost in the matter." The defendant made his motion in writing, asking the court to enter up judgment in his favor in accordance with the findings of the referee. The court afterwards, in the presence of the attorneys for both parties, rendered judgment in favor of the defendant in accordance with the findings of the referee, and the plaintiffs duly excepted to the judgment of the court, and took 60 days to make a case for the supreme court; but no case was ever made. The plaintiffs bring the case here on a certified transcript containing the pleadings, affidavits, agreements of parties, and the report of the referee, and assign eight causes of error, but only specify four reasons in their brief why the judgment should be reversed: "First. The findings of facts made by the referee are not sustained by, but are contrary to, the evidence. Second. His conclusions of law, based upon the facts as found, are erroneous. Third. Error of the court below in overruling plaintiffs' exceptions to the findings of facts and conclusions of law of the referee. Fourth. Error of the court below in causing judgment to be rendered in defendant's fa

vor, and in not causing judgment to be rendered in plaintiffs' favor, as prayed for in their petition."

This court cannot review the findings of the referee to determine whether the findings are supported by sufficient evidence, or whether they are contrary to the evidence, as the plaintiffs did not have all the evidence taken on the trial before the referee preserved in such form as this court can review it. The referee says in his report that he has reduced the evidence taken by him to writing, and that the same is appended to his report. The transcript brought to this court has the following certificate attached: "I, Thomas Lahey, clerk of the district court in and for the county and state aforesaid, in the 27th judicial district of said state, hereby certify that the foregoing and annexed papers contain true, full, and complete copy and transcript of all pleadings and papers filed in the above entitled cause, all orders of the court, the report of the referee, the evidence submitted with the report, the judgment of the court, and all the proceedings in the above-entitled cause, as the same appears on file and of record in my office, save and except that part of transcript which relates to agreement of parties to this case, which does not appear of record; but that part marked thus '' in said report is only a minute on trial docket." The transcript fails to show that it contains all the evidence upon which the referee made his findings. In fact, the report of the referee shows that there was other evidence, not included in the written evidence reported by him. It was the duty of the plaintiffs if they desired the court to review the findings of the referee to preserve the evidence in a bill of exceptions or a case made, showing that it contained all of the evidence. Walker v. Manufacturing Co., 8 Kan. 397; Bayor v. Cockrill, 3 Kan. 282; Simpson v. Woodward, 5 Kan. 571; Porter v. Hall, 11 Kan. 514; Davis v. Wilson, Id. 74; Hale v. Bridge Co., 8 Kan. 46; Blair v. Field, 5 Kan. 58; Murray v. Kelley, 23 Kan. 667; Brown v. Johnson, 14 Kan. 378; State v. Harper Co. Com'rs, 43 Kan. 195, 23 Pac. 101; Moody v. Arthur, 16 Kan. 419; Hill v. Bank, 42 Kan. 270, 22 Pac. 321; Muscott v. Hanna, 26 Kan. 770; Insurance Co. v. Hogue, 41 Kan. 524, 21 Pac. 641; Russell v. Thompson (Kan. App.) 40 Pac. 833. The plaintiffs failed to take any exceptions to the findings of the referee, or to his report. An exception is an objection taken to a decision of the court or judge upon a matter of law. The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. No particular form of exception is required. The exception must state so much of the evidence as is necessary to explain it, and no more, and the whole as brief as possible. Where the decision is not entered on the record, cr the grounds of objection do

not sufficiently appear in the entry, the party excepting must reduce his exception to writing, and present it to the judge for his allowance. Unless the party excepts to the decision of the court, he waives his right to complain thereafter. If the party desires the court to notice his objection, it is his duty to call the attention of the court to the matter at the time the court is rendering his decision or passing on the question objected to. The plaintiffs' attorney in this case wrote a letter to the referee, asking him to note a general exception for him to the whole findings and conclusions; but he never afterwards reduced his objections to writing, stating in what his objections consisted, did not make exceptions to any particular finding of fact or conclusion of law, and, after the report was filed, they never called the attention of the court to any objection, nor did they in any manner object to the court about the finding of the referee, or his conclusions of law. If the findings of fact or the conclusions of law of the referee were not satisfactory to the plaintiffs, it was their duty to call the attention of the court to the error of the referee in some manner, and ask the court to either set the report aside or modify in such manner as was right and proper. The plaintiffs, failing to make their objection to the court, waive their right to come into this court at this time, and ask to have it set aside, or modified in any particular. The plaintiffs excepted to the judgment of the court, and were given 60 days to make case for the supreme court, but have failed to preserve any of the proceedings in said case by either bill of exceptions or made case, and the plaintiffs also made no motion for new trial, nor in any other manner asked the court to correct any error that might have occurred upon the trial of said case, and thereby waived their right to a review of the judgment of the court below.

It is contended by the plaintiffs, without any exceptions whatever it is the duty of the court to determine whether the findings and the evidence are sufficient to support the judgment, and in support of this contention they rely on the case of Foster v. Voightlander, 36 Kan. 572, 13 Pac. 777; but upon an examination of that case we find that it does not support this claim, but is directly opposite to it. Mr. Justice Johnston, delivering the opinion of the court, says: "The report of the referee was made and duly served on the plaintiff in error on April 9. 1885, and was not filed in the court until April 13, 1885, but no exception was made to the report, or to any of the proceedings before the referee. They complain that the report is not as definite and complete as it should have been in failing to state the existence, terms, and conclusion of the partnership, and because it did not contain a detailed account of assets and indebtedness of the firm, the amount invested by each partner in the business, and the amount drawn out by

each, as well as the liability of each for the amount awarded in favor of the defendant in error. The plaintiffs in error are hardly in a position to complain. Aside from the fact that no exceptions were taken to the action of the referee, they did not request him to find more fully or specifically, although they had four days' notice before filing of the report, of what findings it contained; nor did they ask the court, after the report was filed, to refer the same for an additional or more complete statement of facts. Having brought none of the testimony or proceedings taken or had before the referee, we are unable to say what further findings the referee could or should have made.

* * Without the evidence or any exceptions, the only question to be considered is whether the findings support the judgment rendered, and this we determine in the affirmative. The questions principally argued are not fairly raised by the record. The defects complained of are such as might have been made the subject of an application for further and more specific findings, but the plaintiffs in error chose not to avail themselves of the remedy. * All of the

*

evidence and proceedings were before the court when it overruled the motion to set aside the report, and without these we cannot say the rulings were erroneous." Counsel also calls our attention to the case of Koehler v. Ball, 2 Kan. 155; but in that case the plaintiff in error made his motion in the district court to set aside an order of the court confirming a sheriff's sale, and also to set aside the appraisement and sale of the land, and the court refused to entertain his motion, and he filed his petition in error in the supreme court to reverse the order of confirmation of said sale, and attached to his petition in error a transcript of the proceedings had in the district court; Cobb, C. J., delivering the opinion of the court, quoting from the opinion of the supreme court of Ohio, with approval, in the case of Bank v. Buckingham, 12 Ohio St. 402: "The object of an exception is generally to bring up on the record for review a decision of the court upon a matter of law which the record would not otherwise show. In such case the exception must be reduced to writing, and allowed and signed by the court; but where the decision excepted to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing it to be noted at the end of the decision that he excepts * *. If the record shows such final judgment to be erroneous, it is the right of the party aggrieved to have it reversed, vacated, or modified on petition in error to the proper reviewing court." There being nothing in the record showing the proceedings to be erroneous, the only question that this court can consider is whether the final judgment rendered by the court is in accordance with the findings of facts made by the referee and reported to

the court. We are satisfied that the judgment of the court is fully sustained by the facts as found. The judgment of the district court is affirmed. All the judges concurring.

(17 Mont. 32)

LUNDEEN v. LIVINGSTON ELECTRIC LIGHT CO. (Supreme Court of Montana. Oct. 14, 1895.) OBSTRUCTING STREET-NEGLIGENCE-PROXIMATE

CAUSE.

1. A guy wire running from a telegraph pole across a street to a post four or five feet above the ground, and two feet from the sidewalk, is an obstruction to the free and ordinary use of said street.

2. Where defendant negligently ran a guy wire from a telegraph pole across the street, and a stranger's horse, becoming frightened, ran into and broke the wire, causing it to strike and injure plaintiff, defendant's negligence was the proximate cause of the injury.

Appeal from district court, Park county; Frank Henry, Judge.

Action by L. F. Lundeen against the Livingston Electric Light Company for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed.

This is an action for damages for personal injuries. It appears from the record that the defendant corporation was on the 3d day of July, 1892, the owner of a franchise obtained from the city of Livingston, authorizing it to own and operate an electric light plant for the purpose of lighting said city, and was on said day operating said plant, with poles and wires put up and established in and along the streets thereof. It became its duty, under said franchise, to so operate said plant that it should in no way obstruct the free use of the streets, alleys, and public ways of said city. In placing its poles on which its wires were strung, the company had established a pole at the corner of Second and Park streets. To strengthen and support this pole, a guy wire was run from it to a post planted across Second street, in Park street, a few feet from the sidewalk on said Park street. This post, it appears, was from four to six feet high, and the guy wire was fastened around it four or five feet above the ground, and extending thence to the pole across Second street. It appears that on said 3d day of July the plaintiff was riding at a moderate gait, on horseback, along said Park street, in company with one of the witnesses. Near the intersection of said streets a man by the name of Bender, also on horseback, passed the plaintiff. Here Bender's horse became frightened, and for a time unmanageable, and shied across the street, and ran against the guy wire, and broke it near the post to which it was fastened. The broken wire recoiled, and wound itself around the waist of the plaintiff, who was riding in the rear of Bender, pulled her from her horse to the ground and inflicted upon her serious injuries, to recover damages for which this suit is brought. The defend

ant denies that it was guilty of negligence by placing and maintaining the post and guy wire in and along the streets of said city, as alleged in the complaint. It also denies the damages. The case was tried with a jury, who returned a general verdict for the plaintiff in the sum of $500. At the request of the defendant the following special findings of fact were submitted to the jury, and made and returned by them: "First. Was the pole and guy wire of the defendant company, which is alleged to have caused the accident in this case, so placed as to be dangerous to the traveling public in the ordinary use of Park and Second streets in the city of Livingston? Answer. Yes. Second. Did the defendant company use due and ordinary care in placing the said pole and guy wire where it was placed? Answer. No. Third. Would the accident have happened, had not the horse of the witness Bender run against the pole? Answer. No." Judgment was rendered for the plaintiff, in accordance with the verdict and findings. From this judgment and the order refusing a new trial, the defendant appeals.

Savage & Day, for appellant. Campbell & Stark and John T. Smith, for respondent.

PEMBERTON, C. J. (after stating the facts). The defendant contends that the evidence is insufficient to sustain the verdict, in that there is no evidence that the post and wire, or either of them, constitute an obstruction of the free use of the streets, in their ordinary and usual use. We think the evidence is ample to support the finding in this particular. The evidence is that the post to which the wire was attached was five or six feet high; that the wire was fastened to it about four or five feet above the ground. The post was placed in the street some two feet, at least, from the edge of the sidewalk. We think that the wire was attached to the post so near to the ground that if a horse, being ridden or driven by the post, shied and ran under the wire, injury would be almost inevitable to the rider or driver. The wire was hung so low that a person stepping off the sidewalk, at or near the post, in the nighttime, and attempting to pass under the wire, would be liable to receive serious injury by contact with it. A man of ordinary height could not pass under the wire, at or near the post, without his head coming in contact therewith. We think the post and wire were not only obstructions, but dangerous ones. It seems that ordinary foresight and prudence would have enabled the defendant to have foreseen the probable consequence of placing the post and wire in the street in the manner in which they were placed. Whether placing the post and guy wire in the street by the defendant constituted an obstruction to the free and ordinary use thereof was a question of fact, to be determined by the jury. Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369; Rail

way Co. v. Prescott, 8 C. C. A. 109, 59 Fed. 237; Sweeney v. City of Butte, 15 Mont. 274, 39 Pac. 286.

The real controversy involved in this case, we think, is found in the instructions given and refused by the court. Instruction 2, as given by the court, is as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff was injured and sustained damage as charged in the complaint, and that such injury was the combined result of an accident and of an obstruction in said Park street, and that the damage would not have been sustained but for such obstruction, although the primary cause was a pure accident, still if the jury further believe from the evidence that the plaintiff was guilty of no fault or negligence on her part, and the accident one which common prudence and ordinary sagacity on the part of the plaintiff could not have foreseen and provided against, then the defendant is liable, provided the jury believe from the evidence that the defendant was guilty of negligence, either in the placing of such obstruction in the street in such a manner as to prevent the free use thereof, or in not removing the same, if the same was an obstruction to the free use of said street." The court refused an instruction requested by the defendant, as follows: "You are further instructed that although you may believe from the evidence that the poles and wires thus placed in Park street by the defendant were dangerous to the traveling public, in their ordinary use of the street, yet if you believe that the injury to the plaintiff was approximately caused by the act of the witness Bender's horse, while running away, in running against said pole or wire, and would not have happened but for the act of the said horse, you will find for the defendant." The defendant contends that the court erred in giving said instruction, and in refusing to give the one requested by it. The contention of the defendant is that plaintiff was injured as a result of Bender's horse running against and breaking the guy wire, and that although the defendant was guilty of negli gence in placing the wire in such a place and condition that the horse, under the attendant circumstances, would run against and break it, still it is not liable for damages for the injuries sustained by plaintiff. This contention proceeds upon the hypothesis that the placing of the wire in the street by the defendant must have been the sole cause of the injuries of the plaintiff; that the defendant is not liable for injuries resulting from an accidental intervening or other proximate cause, notwithstanding its negligence in placing the wire in the street. The defendant contends that the plaintiff would not have been in jured if the horse had not run against and broken the wire, and therefore the defendant is not liable, however negligent it was in putting the wire in the street. Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481,.is very