justified the court in assuming that the stake broke when plaintiff struck the hole at the place of accident.

We find that the instructions given in connection with question 7 of the special verdict are a correct statement of the rules of law applicable to this issue, and that they do not assume any fact to the prejudice of appellant.

We find no prejudicial error in the record. Judgment affirmed.

STATE ex rel. GOTTSCHALK v. MILLER, Town Clerk.

(Supreme Court of Wisconsin. Sept. 29, 1908.) 1. CERTIORARI-REVIEW Of Judgment.

The record on appeal from a judgment quashing a writ of certiorari and affirming the order of a town board of supervisors in laying out a highway and discontinuing part of an old one showing that the court heard the cause on the merits, and not on a motion to quash, the judgment will be reviewed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, § 195.]

2. HIGHWAYS-LAYING OUT PROCEEDINGS CLERICAL ERROR IN DESCRIPTION.

Proceedings of a town board of supervisors in laying out a highway are not invalidated because the petition and order give the beginning point as at a certain distance from the northeast corner of a certain quarter section; it clearly appearing from the rest of the description that the southeast corner was the starting point, and the misdescription thus being a mere clerical

error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 159.]

3. SAME-REVIEW-PRESUMPTIONS OF REGU

LARITY.

Under St. 1898, § 1298, providing that the order laying out or discontinuing a highway "shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to such order," the appellate court is concluded by the order as to the regularity of all steps prior thereto. including the sufficiency of a notice and its service, in the absence of an affirmative showing to the contrary.

Appeal from Circuit Court, Richland County; George Clementson, Judge.

Certiorari, on the relation of Charles Gottschalk, against John L. Miller, town clerk of Eagle. From an adverse judgment, relator appeals. Affirmed.

This is an appeal from the judgment of the circuit court quashing a writ of certiorari and affirming the order of the supervisors of the town of Eagle, Richland county, in laying out a highway and in discontinuing part of an old one. Application was made to the supervisors requesting them to lay out a highway described as follows: "Commencing in the highway in said town known as the 'Mark Lewis highway,' about eighteen (18) rods west of the northeast corner of the northeast quarter of the southeast quarter of section number 1 of said town; thence running west on the south line of said forty about twenty-six rods; thence north to the

old house of Lewis Bethke, being about sixty rods; thence in a northwest direction until it strikes the old highway about eight rods east of the northwest corner of the northeast quarter of the southeast quarter of section number 1." The application also requested the discontinuance of a highway described as follows: "Commencing at the terminus of the proposed highway about eight rods east of the northwest corner of the northeast quarter of the southeast quarter of said section one (1), and where said old highway strikes the north line of the northeast quarter of the southwest quarter of section number 12 of said town." Thereafter the supervisors fixed a time and place at which they would meet and decide upon the application. The notice fixing the time and place for the meeting contained the description as given above. The supervisors met pursuant to the notice, and adjourned the meeting, and met at the time and place of adjournment. At the adjourned meeting

they made an order laying out the proposed road and discontinuing the portion of the old road, in form as follows: "We, the undersigned, supervisors of said town, did on the 16th day of October, 1907, make out a notice and fix therein a time and place at which we would meet and decide upon such application, and did meet on the 30th day of October, 1907, at 10 o'clock in the forenoon of said day, at the house of Mark Lewis, in said town, it being the time and place fixed by us in said notice; and first having been satisfied by due proof that the notice aforesaid had been duly given five days previous to the time of our said meeting to all the occupants of the lands through which such highway may pass, by serving each of them personally with such notice or by copy thereof left with or at the usual place of abode of each occupant of said lands, and had also been posted up in three public places in said town ten days before the time of our said meeting in the manner required by law, we did then and there proceed to examine personally said highway, and did hear any and all reasons that were offered for and against laying out said highway and discontinuing such highway; and the said meeting having been duly adjourned by us to the 9th day of November, 1907, at 10 o'clock in the forenoon, at the house of Emery Miller, in said town, of the time and place of which adjournment, when made public, notice was duly given by us, and notice thereof was forthwith filed in the office of the town clerk of said town, the undersigned did again meet, at the adjourned time and place aforesaid, and having further examined into the premises and heard any further reasons that were offered for or against said application and it being our opinion that the public good will thereby be promoted, did decide to lay out such highway and discontinue such highway as hereafter described. Now, therefore, pursuant to said application, we, the said su

pervisors, do hereby order and determine that a highway be and the same is hereby laid out in said town as follows." The description then given is the same as given heretofore. A like order was made discontinuing the part of the old highway; the description being the same as that previously given herein. The board awarded damages to the persons whose lands are alleged in the petition to be affected by the laying out and the discontinuance of these highways.

Relator on December 4, 1907, appealed from the order. The county judge issued a notice specifying December 12, 1907, as the time, and the office of the county judge as the place, for the appointment of commissioners. At the time and place appointed the county judge was not present. A writ of certiorari was issued by the circuit court, upon relator's petition, setting forth the above facts and alleging as errors the misdescription, that the highway did not begin or intersect any highway, that the proper notice was not given of the meeting, that no proof of any notice having been served upon the occupants of lands through which the road ran was on file in the office of the town clerk, that no notice was served upon the petitioner or upon the occupants of the land which touched upon or abutted on the discontinued highway, that the petitioner was not allowed damages, nor were damages allowed to the occupants of the lands touching upon the discontinued highway, and that the discontinuance of the highway deprived petitioner of access to a public highway from his lands. The case was tried by the court upon its merits, and the court found that the proceedings of the board were in substantial compliance with the statute; that the error in describing the commencement of the new highway as 18 rods west of the "northeast" corner of the quarter section, instead of the "southeast" corner of the quarter section, was a clerical mistake that did not vitiate the proceedings; that the order was presumptive evidence of the regularity of the prior proceedings; and that the proceedings of the supervisors in laying out the highway and in discontinuing the old one should be affirmed. This is an appeal from the judg ment in accordance with the findings of the court.

A. C. Vaughan, for appellant. F. W. Burnham and P. L. Lincoln, for respondent.

SIEBECKER, J. (after stating the facts as above). The record shows that the court heard the cause upon its merits on the return to the writ. No motion to quash having been heard and determined by the court, and the case having been decided on the merits, this court will review the judgment in the case. State ex rel. v. Milwaukee County, 58 Wis. 4, 16 N. W. 21; State ex rel. v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. v. Roberts, 87 Wis. 292, 58 N. W. 409; State ex rel.

v. Circuit Court for Outagamie County, 101 Wis. 422, 77 N. W. 745.

The proceedings of the town board are assailed upon the ground that the description of the proposed highway is fatally defective, in that it designates the point of beginning as "about eighteen (18) rods west of the 'northeast' corner of" a quarter section, instead of the "southeast" corner thereof. This error is undisputed. It is manifest that the "southeast" corner is the correct one. This clearly appears from what precedes, where this point is located as in the Mark Lewis highway, which crosses the south line of this quarter section about 18 rods west of the southeast corner. The order also proceeds to locate the highway as "thence running west on the south line of said forty." From these data the point of commencement is definitely shown, and the alleged misdescription becomes a mere clerical error, and does not affect the validity of the order.

The other alleged defects in the proceed. ings by the board are that the notice of hear ing the petition and its service are insufficient and defective, that the highway laid out does not intersect with another, and that there was no proper award of damages to relator and others occupying lands abutting on the discontinued highway. These irregu larities cannot be held to exist in the proceedings had, in view of the record made by the town board in laying out and discontinuing the highways. So far as the record shows, the lands affected by the proposed and discontinued highways are alleged to be owned by Lewis Bethke and Mark Lewis, and their damages are shown to have been settled and awarded as required by statute. There is nothing in the record to show that other parties sustained damages by the laying out of the new road or the discontinuance of part of the old one.

It is averred that no public notice was given, and that there is no proof that a notice was served on owners of lands through which the new highway passes or on those whose lands abut on the discontinued highway. Section 1298, St. 1898, provides that the order laying out or discontinuing highways "shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to the making of such order." Under this statute we are concluded by the order laying out and discontinuing the highways in question as to the facts therein stated and as to the regularity of every step taken prior to the making of the order, and this includes the sufficiency of a notice and its service on the proper persons. In Williams v. Mitchell, 49 Wis. 284. 5 N. W. 798, it was held, respecting the effect of such an order, that: "It is prima facie evidence that the notice was served on all owners of lands through which the altered highway was laid. It is not sufficient that the record fails to show such service affirma

tively. To impeach the validity of the proceeding the failure of service must appear affirmatively. We find in the record no proof of such failure." State ex rel. v. Harland, 74 Wis. 11, 41 N. W. 1060. There is nothing before us to show affirmatively that a proper notice was not served on the interested parties.

Our conclusion is that the court properly held that the proceedings of the board were valid.

Judgment affirmed.

MINNEAPOLIS THRESHING MACH. CO. v. HAUG et al.

(Supreme Court of Wisconsin. Sept. 29, 1908.) 1. STATUTES PENAL STATUTES-CHATTEL MORTGAGES.

St. 1898, § 2316a, prohibiting a chattel mortgagee from selling the property or removing it from the county within five days from the time when the same is actually taken, and authorizing one aggrieved by a violation of the statute to recover, in addition to actual damages, $25 as liquidated damages, and providing that if the property is sold at private sale, or within the five-day period without the mortgagor's consent, the mortgage debt shall be deemed paid, being highly penal, must be strictly construed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 322, 323.]

2. SAME-CONSTRUCTION.

The mischief intended to be prevented by a statute may be considered in construing it. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 262.]

3. CHATTEL MORTGAGES-SALES BY MORTGAGEE-STATUTE CONSTRUED—“ACTUAL TAK

St. 1898, § 2316a, prohibiting a chattel mortgagee from selling the property or removing it from the county within five days from the time when the same was actually taken, authorizes one aggrieved by a violation of the statute to recover a penalty, and provides that if the property is sold at private sale, or within the five-day period without the mortgagor's consent, the debt shall be deemed paid. Held, that the statute was intended to prevent chattel mortgagees from seizing the property and removing it from the county, or from taking it out of the mortgagor's possession and immediately selling it without notice; that an "actual taking," within the statute, means a corporal taking out of the possession and control of the mortgagor: and that in order to incur the penalty it is necessary that the property be taken and sold by the mortgagee within five days from the time the same was actually taken.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 539.]

Appeal from Circuit Court, Trempealeau County; J. J. Fruit, Judge.

Action by the Minneapolis Threshing Machine Company against Olaf Haug and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

This action was brought to recover balance due on promissory notes. The case was tried upon the following stipulated facts: "That the plaintiff is entitled to judgment as prayed for in the complaint, unless the

At

plaintiff has violated section 2316a of the Statutes of 1898, and the acts amendatory thereof, by making a sale of the property mentioned and described in the answer herein, without the consent of the mortgagor, before the expiration of five days from the time when the said property was actually taken; and in case plaintiff did violate the provisions of said section 2316a the defendants are entitled to judgment as prayed for in their answer. That said plaintiff, under and by virtue of the provisions of a certain chattel mortgage, duly executed by said defendants to said plaintiff and filed as required by law, by its duly authorized agent, did on the 11th day of April, A. D. 1906, make out a sufficient notice of foreclosure sale of the property described in defendants' answer, which said notice was by said agent, on the 11th day of April, A. D. 1906, read to Olaf Haug, one of the above-named defendants, at his home in the town of Unity, in the county of Trempealeau and state of Wisconsin. the same time plaintiff's agent read said notice he served upon defendant Olaf Haug the summons in this action. That the said property described in said mortgage and notice was then and there located upon the farm occupied by said Olaf Haug, at a point about 30 rods west of the dwelling house, and in view of the said parties during the reading of said notice, and in the possession of said defendant, and were upon wheels and in substantially the same shape as when moved upon said premises. That the copies of the notice of foreclosure sale and affidavit hereunto annexed are true and correct copies of said notice of foreclosure sale and affidavit made and filed in the office of the town clerk of Unity. That the roads in the vicinity of the farm of said Olaf Haug were in a bad and extremely muddy condition on the said 11th day of April, A. D. 1906, and that the said plaintiff by its agent posted in three public places in said town of Unity, wherein said property was located, notices of said foreclosure sale, which notices so posted were true and like copies of the aforesaid notice of foreclosure sale. That pursuant to said notice the plaintiff, by its authorized agent, did on the 24th day of April, A. D. 1906, at the farm of said Olaf Haug, in said town of Unity, being the place and time specified in said notice, sell and dispose of said property described in said notice and mortgage at public auction. That said property was then and there on said premises in the same place and in the same condition as at the time of the reading and posting of said notices. And that the said property was then and there struck off and sold to the said plaintiff at the price of eight hundred dollars ($800), the said plaintiff being the highest bidder, and that being the highest bid thereof. That the said Olaf Haug, one of the defendants, at the time of the making of said sale, objected to the said sale being made for the

reason that the said plaintiff had not taken and removed the property previous to said sale. That the said plaintiff, by its agent, who made said sale, did make and file with the town clerk of said town of Unity, where the mortgage was on file, the affidavit and copy of notices required by chapter 122, p. 172, of the Laws of 1903." On these facts the court found the chattel mortgage covered the property in question, and that such property was never actually taken previous to the day of sale, and found as conclusions of law that by force of the sale before the expiration of five days from the time the property was actually taken the notes secured by the mortgage were paid and became void and of no force and effect, and the chattel mortgage became canceled, and that the defendants recover $25 liquidated damages. Judgment was entered in accordance with the findings of fact and conclusions of law, from which this appeal was taken.

Anderson & Ekern, for appellant. G. O. Linderman, for respondents.

*

KERWIN, J. (after stating the facts as above). The only question involved in this case is whether the appellant violated section 2316a, St. 1898, which reads: "No sale of any personal property taken by virtue of any chattel mortgage, * except by consent of the mortgagor, his legal representatives or assigns, shall be made before the expiration of five days from the time when the same was actually taken, nor shall any such property during such time be removed from the county where it was situated when taken; and during such period such property shall be subject to redemption by payment of the mortgage debt and the actual and necessary costs and expenses of taking and keeping it incurred at the time of making redemption. Any person aggrieved by a violation of any provision of this section may recover of the person who violated the same, in addition to his actual damages, twenty-five dollars as liquidated damages. If any such property is sold at private sale, without public notice, or is sold within the period herein limited, without such consent, the mortgage debt shall be deemed paid and the mortgage securing the same be deemed canceled. * This is a highly penal statute and must be strictly construed. Hammel v. Cairnes et al., 129 Wis. 125, 107 N. W. 1089; Cohn v. Neeves, 40 Wis. 393; Wright v. E. E. Bolles W. W. Co, 50 Wis. 167, 6 N. W. 508; Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826.

The mischief intended to be prevented by the statute may be considered in construing it. Cohn v. Neeves, supra. This was to prevent mortgagees from seizing chattel mortgage property and removing it from the county where situate, or taking it out of the possession of the mortgagor, and immediately selling it without notice to him. We think the

actual taking mentioned in the statute means a corporal taking out of the possession and control of the mortgagor. In order to incur the penalty prescribed by this statute, it was necessary that the property covered by the chattel mortgage be taken and sold by plaintiff within five days from the time the same was actually taken. There is nothing in the record showing such taking, or any taking, within the meaning of the statute; hence no violation of the statute was shown, and no defense was made out, and the plaintiff was entitled to judgment for the amount due on the notes.

The judgment of the court below is reversed, and the action remanded, with directions to the court below to render judgment for plaintiff on the notes sued upon.

BANDEKOW v. CHICAGO, B. & Q. RY. CO. (Supreme Court of Wisconsin. Sept. 29, 1908.) 1. RAILROADS-INJURY TO PEDESTRIAN-OBJECT ATTACHED TO CAR-NEGLIGENCE.

A railway company was not negligent as to a pedestrian struck while walking along the side of a track by a bucket attached to the side of a freight car on a passing train, where the bucket did not extend further laterally beyond the rails than types of cars in common use, and it was a general custom of defendant and other railway companies to carry such buckets attached to one of the cars to facilitate the treatment of hot boxes.

2. NEGLIGENCE-DEFINITION.

Negligence is a want of the care ordinarily exercised by the great mass of persons under like circumstances.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 1.

For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.j 3. SAME-EFFECT OF CUSTOM.

Proof that one sued for alleged negligence conducted himself in a manner customary with others under similar circumstances excludes an inference of negligence, unless the custom is so obviously dangerous to life and limb as to be at once recognized as such by all intelligent persons. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 7.]

Appeal from Circuit Court, Grant County; George Clementson, Judge.

Personal injury action by Julius Bandekow, by guardian, against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Defendant's railroad ran northerly and southerly through the village of Cassville, Wis., and for several blocks was laid about the center of Front street, elsewhere one of the important streets, but within the block in question substantially uninhabited and untraveled except by pedestrians. About 5 feet west of the track was a row of posts 18 inches high, supporting semaphore wires. The ordinary course of travel for pedestrians was on the track or upon the ballast close to the ends of the ties, and on the west side was between the track and these semaphore wires.

On the day in question a long freight train was proceeding northward on this track, and plaintiff, a boy 91⁄2 years old, started to walk in the same direction between the space and the track. According to the plaintiff and the verdict, he was struck on the head by a "dope pail" attached to the side of one of the cars, knocked down, and severely injured. The jury found, by special verdict, that the presence of the dope pail on the side of the car constituted negligence on the part of the defendant, and that such negligence was the proximate cause of the plaintiff's injury. Motions to set aside and reverse the answers to these questions were overruled, and judgment entered upon the verdict for the damages found, from which the defendant appeals.

Woodward & Lees (Lowry & Carthew, of counsel), for appellant. Clementson & Philipson, for respondent.

DODGE, J. (after stating the facts as above). Among some 69 assignments of error is presented one question, the answer to which, as we have determined upon it, is so conclusive, not only of this appeal, but of the final merits of the case, that we shall rest the decision thereon without discussing the other assignments. That question is whether there is any evidence which can justify the affirmative answers of the jury to the two questions of the special verdict mentioned in the statement of facts, namely, whether the defendant was guilty of negligence in having the bucket upon the side of the car, and whether such negligence was the proximate cause of the plaintiff's injury. This bucket was 91⁄2 inches in diameter. The method of attachment was by hanging the loose bail over a hand rail in the ladder upon the side of the car, thrusting through the bail upon the inside of the round and down into the bucket a long rod of iron, which served to hold the bucket substantially against the side of the car. The ladder projected from the side of the car approximately 3 inches, and thus the bucket projected 62 or 7 inches beyond the ladder, and it is very apparent from the testimony of plaintiff's two witnesses who professed to have seen the bucket that it was upon an ordinary box car, perhaps not the smallest but certainly not one of the unusually large type, such as furniture or refrigerator cars. This train, as do nearly all long trains, contained cars of various sizes, ranging from the oldfashioned box cars, carrying about 40,000 pounds capacity, up to the large furniture and refrigerator cars. It was undisputed in testimony that a 50,000-pound capacity car extends 19 inches outside of the rail, while the largest cars of 100,000 pounds capacity extend 31 inches. It was also in evidence, without dispute, by witnesses both those called for the plaintiff and those for defendant, that it was a general custom, not only on this road, but other roads, to carry such a pail attached to some one of the cars in a long train

in order to facilitate the treatment of hot boxes.

Upon this evidence, which is without dispute, we deem it entirely clear that the carriage of such pail under the circumstances cannot of itself constitute negligence. Negligence is a failure of the care ordinarily exercised by the great mass of persons under like circumstances. It was proved without contradiction that the managers and employés of railroads ordinarily carry a bucket as this was carried. How then could it be Isaid that what was the custom of the mass of mankind was so variant from that custom as to the constitute negligence? It has been held in a long array of cases that proof that the conduct of a defendant coincided with the customary method of doing the business by others under similar circumstances excluded the inference of negligence. Boyce v. Wilbur Lumber Co., 119 Wis. 642, 97 N. W. 563; Yasdzewski v. Barker, 131 Wis. 494, 111 N. W. 689, 120 Am. St. Rep. 1059. Such condition was fully established in this case. True, an exception is noted in the authorities, and equally well established, to the effect that a custom which is so obviously dangerous to life and limb as to be at once recognized as such by all intelligent persons cannot be justified under this rule. Boyce v. Wilbur Lumber Co., 119 Wis. 648, 97 N. W. 563; Yasdzewski v. Barker, 131 Wis. 498, 111 N. W. 689, 120 Am. St. Rep. 1059. But the manner of carrying the bucket in question clearly is open to no such criticism. From the measurements of cars as above stated, it is obvious that the bucket did not project laterally beyond the exterior limits of some of the cars which were usually if not universally present in freight trains. It therefore offered no danger to any person far enough from the track to clear the cars ordinarily carried therein. It would be no more menacing to one alongside the train than other objects customarily in that train. Hence any injury from that fact was no more to be foreseen than from the cars themselves.

For the reason stated, the trial court erred in refusing to grant the requests to reverse the answers to the two questions mentioned.

Judgment reversed, and cause remanded, with directions to enter judgment in favor of defendant.