Will of Bilty, 171 Wis. 20. 2. Mr. Devos testified fully upon the trial of the matter in the county court. A perusal of the testimony there given leaves the impression that he testified fully concerning the competency of the testator and as to all circumstances attending the execution of the will. His testimony given at that trial was admissible in evidence upon the trial in the circuit court. Sec. 4141a, Stats. In addition to the authority of that section, the contestants offered to stipulate that his evidence given in county court might be read in evidence upon the trial in the circuit court. 3. At the time of the application for continuance the cause had already been pending, two years in the circuit court. The showing made on the application for the continuance did not indicate when the absent witness would. return from France or when his testimony could be procured. The matter having been pending for so long a time should not have been continued by the circuit court except for very cogent reasons and a persuasive showing that justice would miscarry unless the continuance be granted. This did not appear. In fact, no statement was made as to what evidence Mr. Devos was expected to give that was not given by him upon the hearing in county court, in which respect Circuit Court Rule XIX was not complied with. 4. Circuit Court Rule XIX requires an application for continuance to be based upon an affidavit by the party or some person who knows the facts, setting forth specifically the facts upon which the motion is founded. No such affidavit was filed in this case. Upon the hearing of the motion one of the attorneys for the proponent was sworn in open court. The testimony given by him appears in the record over the certificate of the court reporter. It is not even signed by him. We know of no rule or statute constituting testimony, given upon a motion of this kind, a part of the record upon the mere certificate of the court reporter. A doubt was expressed by this court in Sweet v. Modern Woodmen, 169 Wis. 462, 172 N. W. 143, as to the Will of Bilty, 171 Wis. 20. propriety of receiving oral testimony upon the hearing of an ordinary motion, and one of the objections to such procedure is that there seems to be no way provided by which the testimony so given may be made a part of the record so that it can be reviewed upon appeal. However, we again reserve the question, preferring to withhold a definite decision thereof until it shall be necessarily involved and we have had the benefit of full argument thereon. Treating the record as properly before us, we think that the trial court rightly disposed of the motion for continuance upon its merits. We are asked to order the costs and attorney's fees of the proponent upon this appeal to be paid out of the estate. "The established rule is, where the contestant of a will has acted in good faith in taking an appeal to this court, and the questions of law or fact involved are worthy of consideration, to order the costs taxed against such contestant paid out of the estate." Jones v. Roberts, 96 Wis. 427, 433, 70 N. W. 685, 71 N. W. 883; Davis v. Davis, 132 Wis. 54, 111 N. W. 503, 1129; Will of Bierke, 132 Wis. 165, 111 N. W. 1128. The same discretion is vested in this court with reference to attorney's fees by sec. 4041b, Stats. We do not think the discretion should be exercised, however, where the judgment or order appealed from was so clearly right as in this case. By the Court.-Judgment affirmed. Kashuda v. Adams Express Co. 171 Wis. 25. KASHUDA, by guardian ad litem, Appellant, vs. Adams EXPRESS COMPANY, Respondent. January 17-February 10, 1920. Negligence: Driver requesting boy to climb on wagon: Failure to hitch horse properly: Contributory negligence of boy: Contributory negligence of parents. 1. Where the plaintiff, nearly eight years old, climbed up on one of defendant's wagons and was injured when the horse became frightened and ran away, and there was evidence that the driver asked plaintiff to put an empty feed bag in the wagon and that the driver left the horse unhitched and went away, the court properly refused to set aside findings of the jury that defendant was negligent and that such negligence was the proximate cause of the injury. 2. Where the danger is remote and not so obvious as to be easily appreciated, it is usually a question for the jury whether a child appreciated the danger to such an extent as to be responsible for its conduct. 3. The act of the boy in climbing on the wagon at the driver's request is held not contributory negligence as a matter of law. 4. It was not negligence as a matter of law for a mother and father, while both are at work, to leave the plaintiff, who was nearly eight years old, in the care of his fourteen-year-old sister in their home on an ordinary residence street. [Whether the negligence of the parents would be a bar to the plaintiff's action, not decided.] APPEAL from a judgment of the circuit court for Milwaukee county: CHESTER A. FOWLER, Judge. Reversed. Action for personal injury. The driver of defendant's express wagon lived next door to plaintiff's parents. He was in the habit of driving his horse to the curb in front of his house at noon and feeding it oats in a box. On the day of the accident, August 14, 1917, he drove his horse to the curb and fed it oats. Plaintiff, a boy seven years and ten months old, got on the wagon, and while on the seat the horse became frightened, ran away, and the boy was injured. The jury returned a special verdict finding (1) that the Kashuda v. Adams Express Co. 171 Wis. 25. defendant's driver did not use ordinary care in respect to hitching the horse at the time of the injury; (2) that he failed to use ordinary care in respect to keeping the boy away from the wagon; (3) that such failure found in questions 1 and 2 was the proximate cause of plaintiff's injury; (4) that the parents of the plaintiff used ordinary care to keep plaintiff away from defendant's wagon; (5) that plaintiff used ordinary care in climbing upon the wagon at the time of the injury; and (6) damages in the sum of $3,000. Upon defendant's motion the court changed findings 4 and 5, to the effect that plaintiff and his parents were guilty of contributory negligence, and awarded judgment for defendant upon the verdict so amended, from which judgment the plaintiff appealed. Arthur Breslauer of Milwaukee, for the appellant. For the respondent there was a brief signed by Quarles, Spence & Quarles, attorneys, and oral argument by Arthur B. Doe, of counsel, all of Milwaukee. VINJE, J. There was credible evidence from which the jury could find that the driver asked plaintiff to get the feed box from the yard; that he gave plaintiff the empty feed bag after he had put the oats in the box; that he told him to put the bag in the wagon; that the driver went into the yard before hitching the horse, and that plaintiff in obedience to the request to put the bag in the wagon climbed up on the seat and reached back to put the bag under or behind the seat, that being the place it was usually kept when empty; and that while he was so engaged the horse ran away and his leg was injured by the ankle being crushed between the wagon and a telephone pole. The trial court refused to disturb the first three findings covering defendant's negligence and its proximate cause of the injury. It is urged by the defendant that the court erred in so doing because, in the absence of an invitation on Kashuda v. Adams Express Co. 171 Wis. 25. the part of the driver to put the bag in the wagon, no actionable negligence on its part is shown; if an invitation was given, the defendant cannot be charged with knowledge or the consequences thereof, citing Miller v. Mead-Morrison Co. 166 Wis. 536, 166 N. W. 315, and Webster v. Corcoran Bros. Co. 156 Wis. 576, 146 N. W. 815. In the former case the defect was a latent one, and it was held not chargeable to the defendant because the case was classed as one where a manufacturer puts out an article having a latent defect for which he is not responsible in the absence of knowledge thereof. This is no such case. In the latter case counsel mistakes the gist of the decision. There, as here, plaintiff had been directed by defendant's employee to do an act in the prosecution of his work, viz. straighten out a kink in a rope, and it was held that defendant was liable because there was not only a breach of duty to keep plaintiff away, but "on the contrary there was an invitation to do the very thing which duty required ordinary care to prevent." Page 580. The court therefore properly refused to set aside the findings that defendant was negligent and that such negligence was the proximate cause of plaintiff's injury. Can it be said as a matter of law that plaintiff was guilty of contributory negligence? When the danger is obvious and easily appreciated by children of even tender years, this court has held them responsible for their conduct to practically the same degree that adults are, as in Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770, where a boy eight years and nine months old attempted to cross in front of a moving street car; or as in Ballard v. Bellevue A. Co. 162 Wis. 105, 155 N. W. 914, where a girl eleven years old, contrary to orders, used an automatic elevator in an apartment building. But where the danger is more remote, latent, and not so obvious, it is usually a question for the jury to say whether the child appreciated the danger to such an extent that it could be held |