536, this court construed a complaint tion, when the complaint should have been charging an alleged wrongful act to have construed as charging but one. It should been perpetrated negligently and wilfully have been held to state a cause of action as stating a cause of action involving gross for gross negligence. We have a verdict negligence, and tested the sufficiency of the finding that degree of wrong, and in effect verdict thereby, holding that, upon such finding that a lesser degree was the proxia complaint, there cannot be a recovery on mate cause of the injury. It may appear the ground of ordinary negligence consist- somewhat technical to hold that such a ent with McClellan v. Chippewa Valley verdict presents a well-defined and fatal Electric R. Co. 110 Wis. 326, 85 N. W. inconsistency, but the practice contemplat1018, where it was decided that in a com-ed by the Code that the plaintiff shall state, plaint charging ordinary negligence there understandingly to the defendant and the can be no recovery on the ground of gross negligence. The practice adopted here of declining to construe the complaint as to the particular species of wrongdoing intended to be charged therein, and confining plaintiff thereto, and permitting a recovery upon the ground of ordinary and gross negligence as well, is very reprehensible. To allow such a practice to gain a foothold in our system would lead to prejudicial confusion and uncertainty in the administration of justice. The jury were directed to find as to issues appropriate to two distinct and somewhat inconsistent causes of ac diction is concerned-successfully carried out, to unite as identical injury committed through gross negligence with wilful negligence, and to segregate gross negligence from all other negli gence, as was done in RIDEOUT V WINNEBAGO TRACTION Co., following other modern Wiscon sin decisions, one is led to think that the proc ess of bending the meaning of words to suit the immediate occasion is complete. A careful consideration, however, of all the cases on the subject, leads to the conclusion that, notwithstanding the careless use of language in stating or alluding to wilful, intentional, or negligent injury, the courts are in reality at one as to what is the true rule; which may be stated in the language of the court in Belt R. &. Stock Yard Co. v. Mann, 107 Ind. 89, 7 N. E. 893, as to what the court deemed necessary to overcome the defense of contributory negligence: "To entitle one to recover for an injury to which his own negligence may have contributed, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed under such circumstances as that its natural and probable consequence would be to produce injury to oth ers. There must have been either an actual or constructive intent to commit the injury. The act must have involved conduct quasi criminal in character." If this be true, it assists somewhat in arriving at a conclusion as to what is the doctrine as to the right to recover under an allegation alleging gross, or wilful, negligence on proof of mere, or ordinary, negligence, but does not entirely settle the question as to what the true rule is, as has been, and will be, seen by consulting cases in supra, I. In Indiana and Colorado an allegation that an injury was com mitted in a wanton, or reckless, or grossly negligent, manner is not an allegation that the same was wilful. And so in those states, un court, the facts as to the cause of action he relies upon, and, if there are two causes, that they shall not be inconsistent, and that the recovery shall be in harmony therewith, is so invaded by that adopted by the trial court that we feel constrained to condemn it, not overlooking § 2829, and the scope thereof, as declared by this court, in saving judicial decisions from disturbance regardless of errors not affecting the substantial rights of the adverse parties. Since no recovery can be sustained under the complaint for ordinary negligence, all questions presented upon the appeal, appertaining to the subject of contributory der an allegation that an injury was committed in that manner, recovery may be had on proof of ordinary negligence. In Florida an allegation of negligence which is wanton or reckless would seem to be held to be the equivalent of intentional or wilful. It is also held that such is not included in an allegation of gross negligence. Aside from this, however, it is believed that the consensus of judicial decision is that under an allegation setting forth that an injury was caused by an act or omission either wilfully and intentionally committed, or under such circumstances as that its natural and probable consequences would be to produce injury to others, and as evincing a reckless disregard for the safety of others and a willingness to inflict the injury complained of, a recovery cannot be had upon proof simply of ordinary negligence; and this is so whether the allegation designates the act or omission constituting the injury as wilful or intentional, or as gross. negligence. On the other hand, it seems to be settled that a recovery may be had upon an allegation of an injury committed by an act or omission involving ordinary negligence, on proof of any degree of negligence, including gross negligence, and also including an act or omission which might be considered wilful, intentional, reckless, or wanton. The latter doctrine, however, does not obtain in RIDEOUT V. WINNEBAGO TRACTION Co. or any other of the Wisconsin cases, the supreme court of that state having repudiated it. And, as has been seen, in Michigan a plaintiff will not be permitted to prove wilful, wanton, or reckless negligence to rebut the defense of his contributory negligence, under his declaration alleging ordinary negligence. Denman v. Johnston, 85 Mich. 387, 48 N. W. 565, supra, IV. Excepting these, however, the doctrine as stated is believed to prevail. P. H. V. negligence of Sarau, are immaterial, and will therefore not be considered. If the injury was caused by gross misconduct of appellant's servant, conduct involving at least constructive intent to do the act complained of, whether Sarau did or did not exercise ordinary care to protect himself does not affect the right of respondents to recover, either for the damages caused to the deceased or to the surviving relatives. Bolin v. Chicago, St. P. M. & O. R. Co. 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446. The point is made that there was no evidence of wilful misconduct on the part of appellant's servant who controlled the car, and therefore a verdict should have been directed in appellant's favor. It seems to us otherwise. There was evidence tending to show that when the car reached a point where the motorman was in full view of the marchers, and for a considerable period of time thereafter, he must have observed the danger those in its pathway were in and had ample opportunity to guard against it; that he must have seen that the marchers were proceeding entirely unconscious of the approach of his car; that with the noise of the band and other noises made by them it was quite improbable that they would, or might not, observe the car in time to give way for it to pass; that by repeated signals from the conductor he was directed to slacken the speed of the car, and if necessary stop it before reaching the space occupied by the march ers, and that, nevertheless, he made no effort to do so until it had traveled through a large part of such space and up to within a few feet of Sarau, at the rate of 15 miles per hour, or about 22 feet per second. A jury might well find under such circumstances conscious disregard of human life, rendering the wrongdoer in case of a destruction thereof guilty of manslaughter in a criminal action, and of wilful misconduct in a civil action. True, the car had the right of way, and it was the duty of the marchers to step aside so as not to interfere with its passage or speed. True, it was the duty of the marchers, as is ordinarily the case, to use their senses reasonably, to enable them to do that before the car came dangerously near them, and yet no excuse is seen for an assertion of a superior right in appellant by consciously running its car into the parade at a speed of 22 feet per second. A person with Sarau at the place of the injury when he regained consciousness, in answer to this question, "What did he say, if anything, that would indicate pain and suffering?" said: "He raised his right leg. at that time he knew he was hurt, and he didn't know whether his leg was off or whether it was cut, although he felt the pain, and he thought they were either squeezing it or doing something to it, and he wanted us to let go; seeing we didn't let go he raised his right leg and tried to kick us, and we hela his right leg down." It is easily seen that the answer is not responsive to the question. Error is assigned because the court refused to strike it out. Whether appellant was, or may have been, prejudiced thereby does not clearly appear. As a rule unresponsive answers by a witness should be promptly stricken out, upon a motion being seasonably made therefor. The orderly conduct of trials requires that litigants shall have a reasonable enforcement of that rule. Several witnesses were permitted to testify to what they heard Sarau say, or do, or how he acted shortly after he was injured, some of the occurrences being while he was on the way to the hospital from the place of the injury, and some immediately upon, or soon after, his arrival at the hospital, indicating that he was conscious and suffering pain. That was proper. Exclamations and expressions such as commonly, under the circumstances, evince suffering, the conditions being such as to indicate reality, may be testified to by a person having knowledge thereof upon the ultimate fact which they suggest becoming a proper subject of inquiry. Such evidence falls within the rules allowing all parts of the res gesta as to a subject of judicial inquiry to be given in evidence. Hall v. American Masonic Acci. Asso. 86 Wis. 518, 57 N. W. 366; McKeigue v. Janesville, 68 Wis. 50, 31 N. W. 298; Quaife v. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821, 4 N. W. 658; 1 Greenl. Ev. § 102; and Jones, Ev. § 352. The doctrine that a person's state of mind as to existing pain can be so established necessarily inincludes establishing consciousness. Both matters were material in this case. One could not really suffer pain without possessing some degree of consciousness. The indications of one would ordinarily evince the other. But independently of that, doubtless, the state of a person's mind as regards consciousness, when material, may be established by the species of evidence competent to establish the fact of suffering pain. Evidence was permitted as to what the duties of a motorman were, operating a car manned by a conductor, as in this case. The question was evidently not aimed at what the duty of the motorman was, as a matter of law, but as to what the incidents of his position were in that regard under his contract of employment. Presumably, the purpose of the question was to show that he was not required to do anything inter- | in the briefs of counsel. We have given fering with observing the situation of those such attention thereto as seems to be upon the track in the pathway of his car on required without discovering any prejudithe occasion in question, and that he reck- cial error therein. lessly and consciously disobeyed the conductor's orders to stop the car before the event complained of. The bearing of the evidence was on the claim of wilful misconduct imputable to appellant. In that light we see no reason why the evidence was not proper. Complaint is made because the court did not submit the following questions to the jury, as requested: "Did the motorman sound the gong continuously while approaching Sarau-" "At what rate of speed was the car running when it ran into the Milwaukee Uniformed Rank, Knights of Further complaint is made because evi- Pythias?" It is a sufficient answer thereto dence was permitted as to the schedule to say that the questions only involve evitime for running cars the week before the dentiary circumstances, not issues of accident. We are unable to see how ap- fact raised by the pleadings, within the pellant could possibly have been prejudiced meaning of § 2858, Rev. Stat. 1898; Baxter by that. There was no claim that the v. Chicago & N. W. R. Co. 104 Wis. 307, speed of car on the day of the accident was 80 N. W. 644; Mauch v. Hartford, 112 Wis. greater than usual. The only difference in 40, 87 N. W. 816; and Patnode v. Westenthe schedule on that day and on the week haver, 114 Wis. 460, 90 N. W. 467. There prior thereto was that on the former, con- is no allegation in the complaint or the trary to the latter, the cars were operated answer as to whether the gong of the car one way only, giving patrons the benefit of was continuously sounded while the car two opportunities to go in that direction in was approaching Sarau, or at what rate of the time ordinarily occupied by a trip down speed it was going at the time of the inthe track and return. It was certainly jury. The allegations of the complaint are proper to show the manner in which the to the effect that it was then moving at a cars were operated at the time of the in- dangerous rate of speed, and that due and jury, and that there was a special arrange-sufficient warning was not given to persons ment for the occasion for the better con- in the pathway thereof to give way for its venience of patrons. passage. These allegations were put in issue by denials, and in addition defendant answered that, as the car approached the point where the injury was indicted, a sufficient warning of its presence was given by sounding the gong and bell on the car. So the real issue raised was whether the car, un Error is assigned because one, who was in the procession some distance behind Sarau, was permitted to testify that as the car passed him, he said, "For God's sake stop that car!" It was then in dangerous proximity to Sarau. The exclamation was made within hearing distance of the motor-der the circumstances, was approaching at man. He may, or may not, have heard it. It was within the probabilities that he did. So the evidence, though not competent to show the speed of the car, or that it was going at a dangerous rate of speed, was competent as bearing on the question of whether the motorman operated the car in conscious disregard of the safety of others. One of the marchers, who was some distance behind Sarau, having testified, with out objection, that seeing the danger to those on the car track, he stepped forward to take hold of some of them, his idea being to run on to the track for that purpose, but that there was no show and he stepped back, was permitted to answer a question as to why there was no show. The answer was not strictly responsive thereto, but there was no motion to strike it out. The question merely asked for an explanation of previous evidence. No reason is suggested, or is perceived, why that was not proper. A number of other rulings on evidence adverse to appellant are referred to a negligent rate of speed, and whether sufficient warning was given to persons in its pathway to clear the track for its passage. These matters were, though not in the most approved form, included in the questions submitted. Error is assigned because the court refused to instruct the jury that, had Sarau lived, his earning capacity would probably have decreased with advancing years. It would seem that appellant could not have been prejudiced by a failure to instruct on such a matter of common knowledge. Further error is assigned for a refusal to instruct the jury that the probable earning capacity of Sarau should be considered with reference to his capacity in that regard, taking into consideration his personal expenses, income from property not being considered. The general instructions SO informed the jury. That being the case, there was no error in refusing to specially instruct as to the same matter. Some complaint is made of remarks by respondents' counsel during the argument to the jury, which do not appear to merit special attention. The exceptions in regard thereto have been sufficiently examined to satisfy us that at least no prejudicial error was committed in respect to such matters. The judgment must be reversed and the action remanded for a new trial of the cause of action for gross negligence, it being understood that the issues appropriate thereto are the only ones which the complaint justifies submitting to a jury for determination. It is unfortunate that a verdict was taken which in effect found that such a wrong produced the death of Sarau, and that it was also produced by a wrong of an entirely different character. The judgment appealed from is reversed, and the cause is remanded for further proceedings in accordance with this opinion. MICHIGAN SUPREME COURT. ERROR to the Circuit Court for Mar quette County to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries for which defendant was alleged to be responsible. Reversed. The facts are stated in the opinion. Mr. W. T. Potter, for plaintiff in error: The sign or billboard in question was a mere incident to the building to which it was attached, and was in no sense related to or a part of the sidewalk. Williams, Mun. Liability for Tort, p. 152; McLoughlin v. Philadelphia, 142 Pa. 80, 21 Atl. 754; Jones v. Boston, 104 Mass. 75, 6 Am. Rep. 194; Hume v. New York, 74 N. Y. 273. NOTE. As to liability of city for drowning of child in pond on private property, see, in this series, Omaha v. Bowman, 40 L. R. A. 531. As to liability for drowning of child in pond situated partly on street and partly on private premises, see Arnold v. St. Louis, 48 L. R. A. 291. As to liability of city for negligence of private parties in piling lumber in street, see Evansville v. Senhenn, 41 L. R. A. 728. As to liability for damage caused by the storing in a street of a wagon by a private in Those objects in a highway which have no necessary connection with a roadbed, or relation with the public travel thereon, and the danger from which arises from mere casual proximity, and not from the use of the road for the purpose of traveling thereon, will not, as a general rule, render the road defective. Hewison v. New Haven, 34 Conn. 136, 91 Am. Dec. 718; Hixon v. Lowell, 13 Gray, 59; Williams, Mun. Liability for Tort, p. 109. The liability in Michigan is purely statutory, and this case is neither within the language nor the intention of the statute. Williams, Mun. Liability for Tort, p. 181; Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815; Kennedy v. Lansing, 99 Mich. 518, 58 N. W. 470; Gavett v. Jackson, 109 Mich. 408, 32 L. R. A. 861, 67 N. W. 517; McArthur v. Saginaw, 58 Mich. 357, 55 Am. Rep. 687, 25 N. W. 313. Reasonable, and not absolute, safety is all that is required. Weisse v. Detroit, 105 Mich. 482, 63 N. W. 423. Messrs. Button & Heffernan, for defendant in error: A board which was liable to blow down whenever a proper wind blew was allowed by the city to be in use for about two years, resting on the sidewalk, a menace to all travelers. It was the active approval of the use of the sidewalk for the purpose of the signboard. This rendered the municipality liable. Joslyn v. Detroit, 74 Mich. 458, 42 N. W. 50; Hayes v. West Bay City, 91 Mich. 418; 51 N. W. 1067; Hutchinson v. Ypsilanti, 103 dividual, with permission of the city authorities, see Cohen v. New York, 4 L. R. A. 406. As to liability generally for dangerous condition of premises lying open beside a highway or frequented path, see note to Lepnick v. Gaddis, 26 L. R. A. 686, and the subsequent cases in this series of Pekin v. McMahon, 27 L. R. A. 206; Moran v. Pullman Palace Car Co. 33 L. R. A. 755; Dobbins v. Missouri, K. & T. R. Co. 38 L. R. A. 573; Stendal v. Boyd, 42 L. R. A. 288; and Cooper v. Overton, 45 L. R. A. 591. Mich. 12, 61 N. W. 279; McEvoy v. Sault | or that said 3 feet was covered by any walk The sidewalk was all of it under the control of the municipality, and the fact that it extended over the line of the street could make no difference. that it built or ordered. This area in front of the opera house appears to have been an exception, other buildings extending to the line of the highway. It is not unreasonable to suppose that it was left for the accommodation of the owner's patrons, Elliott, Mun. Corp. § 326, pp. 293, 294; and it is shown that the owner exercised Drake v. Lowell, 13 Met. 292. Hooker, J., delivered the opinion of the court: dominion over it by the use made of the billboard, if in no other way. The city had no lawful right to require its use for a street, or to prevent the owner from using it in connection with his opera house in any lawful way. We cannot say from the record that the city should be estopped from denying that this strip was a part of its sidewalk, to be kept in repair, etc., by it. We must then inquire whether the liability can be sustained upon the ground that it failed to abate a nuisance. In its construction of the statute (Comp. Laws, § 3441), which has been somewhat liberal, this court has never gone so far as to hold that it requires the municipality to protect a traveler against dangers which result en The plaintiff was injured by a billboard which Butler was in the habit of using in front of the doors of his opera house, in the city of Ishpeming, to advertise prospective attractions. This billboard was 88 inches in length, 44 inches in width, and weighed over 40 pounds. On each edge, about a foot from the top of the board, a screw hook was placed to fasten into eyes or staples on the beam over the double doors. The lower end rested upon the sidewalk 18 inches or 2 feet from the building. The building is 3 feet back from the street line, but the walk extends to the door. The plaintiff, while pass-tirely from the use made of abutting premi ing, was hit and injured by the board, which was blown by the wind against him. There was some testimony indicating that it was not fastened on this occasion. A verdict and judgment for the plaintiff resulted from the trial, and the defendant has appealed. The only question arises over the refusal of the circuit judge to direct a verdict for the defendant. The undisputed evidence in this case shows that the billboard was wholly outside of the highway and upon private ground. Before the defendant can be held liable to pay for this injury, it must be shown that it "neglected to keep its sidewalk in reasonable repair and in condition reasonably safe and fit for travel." No complaint is made that the street or sidewalk was not in proper condition and in a reasonably safe and fit condition for travel, so far as the same was dependent upon the condition of the street itself. Plaintiff's claim rests on the proposition that, to avoid liability under the statute, the municipality must protect the traveler against dangers from beyond the limits of the highway which make traveling unsafe. The only theories upon which defendant can be held liable in this case are: (1) That all of the sidewalk was a portion of the highway, or (2) that the billboard was a nuisance, which the city might and should have abated. There is no testimony tending to show that the 3 feet of ground upon which the billboard stood was a part of the highway, or that the city so treated it. Nothing in dicates that it exercised any control over it, ses by their owners, and which cannot be avoided by barriers or some other effective mode of construction of the highway. It may be reasonably said that a highway is not reasonably safe which has no barriers separating it from a pit or cellar on adjoining premises, and in such a case the liability rests not on a failure to abate a nuisance, but an inadequate highway. The city may, and should, perhaps, build the barrier, but it has no authority to trespass upon the abutter and fill up his cellar. In Hixon v. Lowell, 13 Gray, 61, this subject is discussed by Mr. Justice Hoar. The statute provided that "all highways, town ways, causeways, and bridges within the bounds of any town" are required to "be kept in repair at the expense of such town, so that the same may be safe and convenient for travelers, with their horses, teams, and carriages, at all seasons of the year." [Rev. Stat. chap. 25, §1.] That was a case where snow and ice fell from a building, having gathered there until it overhung the street. The court distinguished the case from the fall of an awning projecting over the street and supported by posts resting upon the sidewalk. The learned jurist said: "It may not be easy to perceive and state distinctly the difference between the two cases in regard to the liability of the town, but we are all of opinion that there is such a distinction, and that the facts which were proved on the trial will not sustain this action. In most cases the town has discharged its duty when it has made the surface of the ground over which the traveler passes sufficiently smooth, level, and guarded by |