Jennings vs. Town of Albion.

required by the statute (Laws of 1889, ch. 385, sec. 4; S. & B. Ann. Stats. sec. 1702g). It appears that the first publication was on Thursday, May 8, 1890, and the last publication on Thursday, June 12, 1890, and that it was also published on each of the four intervening Thursdays; so that there were in all six publications,-one in each of "six successive weeks prior to the day of the hearing." The order was made and dated April 26, 1890, and the day fixed therein for such hearing was June 28, 1890, naming the hour and place. True, there were only thirty-six days from the time of the first publication to the time of the last publication, inclusive; but there were six publications, and there were more than seven weeks from the time of the first publication to the time fixed for the hearing. We must hold that the publication was sufficient to satisfy the requirement of the statute. Cox v. North Wis. L. Co. 82 Wis. 141.

By the Court. The judgment of the circuit court is affirmed.

NEWMAN, J., took no part.

JENNINGS, Respondent, vs. TowN OF ALBION, Appellant.
March 5-April 3, 1895.

Injury from defective highway: Contributory negligence: Evidence of
subsequent repairs: Cross-examination.

1. Whether it was negligence to ride in a wagon on a seat not anchored thereto is held a question properly for the jury.

2. In an action for personal injuries alleged to have been caused by a defective highway, it was error to permit the road master, who had testified that the alleged hole in the road was only a slight depression, to be cross-examined as to how much work was done in repairing the place after the accident, for the purpose of showing that there was a defect. [Whether it would have been error if the question had been allowed merely to test his credibility or to impeach the truth of his former testimony, and the effect of his answer had been properly limited by the court, is not determined.]

Jennings vs. Town of Albion.

APPEAL from a judgment of the circuit court for Trempealeau county: A. W. NEWMAN, Circuit Judge. Reversed. Personal injuries. The plaintiff was riding on the back seat of a light spring wagon over a highway in the defendant town. The seat on which she was riding was a lumberwagon seat, temporarily placed there, and not fastened down, but kept in place laterally by three-quarter inch strapiron flanges. The plaintiff claims that there was a hollow across the highway about three feet deep and six feet in width, and that the sudden jar caused by the wheels of the wagon dropping into this hollow, and by the front wheels rising up on the other side of the hollow, overturned the seat backward, throwing her out and injuring her. The defect in the road was denied by the answer, and contributory negligence was alleged.

A special verdict was returned, by which it was found (1) that the highway at the place of the accident was not in a reasonably safe condition; (2) that the defect in the highway was the cause of the accident; (3) that both the driver of the team and the plaintiff were in the exercise of ordinary care; (4) that no want of such care on the part of the plaintiff or the driver contributed to produce the accident; (5) that the defect in the highway was the proximate cause of the accident; (6) that the plaintiff's damages were $675; (7) a general verdict for the plaintiff. From judgment for the plaintiff, defendant appeals.

For the appellant there was a brief by H. H. Hayden, and oral argument by II. B. Walmsley. To the point that the evidence of subsequent repairs was inadmissible, they cited Morse v. M. & St. L. R. Co. 30 Minn. 465; Nalley v. Hartford C. Co. 51 Conn. 524; Cramer v. Burlington, 45 Iowa, 627; Hudson v. C. & N. W. R. Cỏ. 59 id. 581; Couch v. Watson C. Co. 46 id. 17; Lombar v. East Tawas, 86 Mich. 14-18; Fulton I. & E. Works v. Kimball, 52 id. 146-149; Dale v. D., L. & W. R. Co. 73 N. Y. 468; Dougan v. Champlain

Jennings vs. Town of Albion.

Transp. Co. 56 id. 1; Salters v. D. & H. C. Co. 3 Hun, 338; King v. N. Y. C. & H. R. R. Co. 4 id. 769; Baird v. Daly, 68 N. Y. 547; Payne v. T. & B. R. Co. 9 Hun, 526; Morrell v. Peck, 24 id. 37; Corcoran v. Peekskill, 108 N. Y. 154.

S. G. Gilman, for the respondent, contended, inter alia, that the questions asked the road master were proper crossexamination to test his credibility. White v. McLean, 57 N. Y. 670; Posey v. Rice, 29 Wis. 93; Ranger v. Goodrich, 17 id. 78; Martin v. Barnes, 7 id. 239; Conkey v. Post, id. 131; Kellogg v. Nelson, 5 id. 131; Magehan v. Thompson, 9 Watts & S. 54. While evidence of additional precautions or subsequent repairs is not competent for the purpose of proving antecedent negligence, it may in some cases be competent for other purposes. Morrell v. Peck, 88 N. Y. 399; Elliott, Roads & S. 650. Where evidence is competent only on some material point, the opposite party may require the court to restrict it to that point. Elliott, Roads & S. 650; Lafayette v. Weaver, 92 Ind. 477.

WINSLOW, J. Two grounds of error are urged:

1. It is said that it should be held contributory negligence, as a matter of law, to ride upon a seat not anchored to the wagon. We cannot so hold. It must be held a question properly for the jury.

2. Upon the direct examination of one Hurlburt, a witness for defendant, who was the road master of the district, he gave testimony tending to show that the alleged hole in the road was a very slight depression of a few inches only in depth. Upon cross-examination by plaintiff's attorney he was asked whether he and another man did not work with a team and scraper several hours, filling up the hole with dirt, after the accident. Objection was made to this question and to others of like tenor, as incompetent, immaterial, and not cross-examination, but the objections were overruled, the court remarking that "it is only material

Laird vs. Town of Otsego.

as to whether there was a hole there;" and the questions.
were answered to the effect that they worked two or three
hours at the place in question. These rulings are claimed
to be error. The great weight of authority is that evidence
of subsequent repairs to a highway is not competent evi-
dence to prove that there was a defect at the time of the
accident. Elliott, Roads & S. 647, 648, and cases cited. It
is claimed, however, by respondent's counsel, that, though
such evidence may not be admissible as affirmative proof of
a defect in the highway, still that it was proper to cross-
examine the witness in question as a means of testing his
credibility, and, if possible, impeaching the truth of his
former testimony to the effect that there was only a slight
depression in the road. Had the questions been allowed for
this purpose, and the effect of his answers properly limited
by the court, a different question would be presented, and a
question which we do not decide. But there was no such
limitation placed upon the questions or answers. The court
said, in effect, that it was competent to prove the existence.
of a hole by this evidence. This was certainly equivalent
to saying that the testimony was competent to prove the
negligence of the defendant. It was not competent for this
purpose whether it was brought out by direct or cross-
examination. For this error there must be a new trial.
By the Court.- Judgment reversed, and action remanded
for a new trial.

NEWMAN, J., took no part.

LAIRD, Respondent, vs. Town OF OTSEGO, Appellant.

March 6-April 3, 1895.

Injury from defective highway: Sufficiency of notice: Piles of rubbish, etc., frightening horse: Court and jury: Proximate cause.

1. The notice of an injury from a defective highway, given pursuant to sec. 1339, R. S., stating that the highway was insufficient and

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Laird vs. Town of Otsego.

obstructed by reason of old planks having been piled in the traveled part thereof one mile east of the village of O. and near to and a little east of the farm house of one B., and that there was an embankment at the point named, is held to be reasonably certain and to point out sufficiently the place, although the description might have been made more definite.

2. Whether a pile of old planks and rubbish left by the roadside upon repairing a bridge was an insufficiency or defect in the highway, as being an object naturally calculated to frighten horses of ordinary gentleness, is held in this case to have been a question for the jury.

3. In an action for injuries alleged to have been caused by old planks and rubbish in the highway which frightened plaintiff's horse, it appeared that there was a pile of planks and rubbish on the west side of a bridge and also some planks east of the bridge, and the evidence tended to show that the horse, after being frightened at such pile, was again frightened by the planks east of the bridge, and that but for the second fright the accident would not have happened. The court refused to submit in the special verdict questions as to whether the horse was frightened and shied at the planks east of the bridge and whether that was the efficient and immediate cause of the accident, and gave instructions which tended to withdraw the attention of the jury from that point and submitted the case wholly in respect to the pile west of the bridge. Held, error.

APPEAL from a judgment of the circuit court for Vernon county: A. W. NEWMAN, Circuit Judge. Reversed.

This action was for the recovery of damages against the defendant town for an injury received by the plaintiff while traveling upon and along one of its highways, alleged to be defective and insufficient by reason of the fact that a bridge had been rebuilt by the authority of the town across the highway where it passed along and over an embankment about fourteen feet wide and about two feet high, and the rubbish, consisting of old planks, pieces of timber, and other refuse matter, had been piled and allowed to remain on the margin and along the side of the said grade in such a manner that the same naturally tended to frighten horses; that while the plaintiff was traveling along said highway in a