Jurkovic v. Chicago, M. & St. P. R. Co. 166 Wis. 266.

as readily as its existence, and he makes an observation to ascertain what the fact is, his testimony that it did not exist is not negative in the sense that it can be said as a matter of law that positive testimony outweighs it."

To the same effect is the holding in Kaufmann v. C., M. & St. P. R. Co. 164 Wis. 359, 159 N. W. 552, 1067. These cases rule the question here presented in favor of the refusal to instruct as requested. The sharp conflict in the evidence upon the subject of warning made it peculiarly a jury issue. The judge of the civil court and the circuit judge approved the finding. We cannot say they were clearly wrong in so doing.

The next claim is that plaintiff was guilty of contributory negligence as a matter of law and the jury's finding to the contrary should be set aside. The rule with reference to the degree of care that plaintiff should exercise, circumstanced as he was, is so fully and clearly stated in Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, that no restatement of it will here be made. That rule was recognized and approved in Bubb v. Milwaukee E. R. & L. Co. 165 Wis. 338, 162 N. W. 180. From the statement of facts it appears that after plaintiff had deposited the first frog he walked in a southwesterly direction for about fifty feet to the pile of frogs lying near defendant's track. In so doing he had his back substantially toward the train coming south. He listened for signals but heard none, and stepped up to or around the west end of the pile and stooped to lift without looking north to see if a train was coming. We assume he did not look north, for if he had he would have seen the train, which was plainly visible for a thousand feet back. We are asked to say that such conduct on the part of a person required to work near a track is so clearly negligent that a jury's finding to the contrary, even though approved by two trial judges, cannot stand. We are unable to reach such a conclusion, for it seems to us that reasonable men might

Upham v. Plankinton, 166 Wis. 271.

well come to different conclusions on the subject. On matters of judgment of this nature considerable latitude must be accorded both juries and trial courts.

No other assignment of error is of sufficient importance to merit discussion.

By the Court.-Judgment affirmed.

ESCHWEILER, J., dissents.

44

UPHAM and another, Trustees, Respondents, vs. PLANKINTON and another, by guardian ad litem, imp., Appellants.

October 26-November 13, 1917.

Wills: Trust, with power to sell vacant and unoccupied lands: Equity: Power to order sale of other land.

1. A will devising property in trust, with power to sell "any and all real estate which shall be vacant and not occupied with buildings at the time of my death," did not authorize the sale of land upon which stood the testator's residence and a large barn and which continued after his death to be occupied by his widow. 2. But a court of equity had power to order a sale of said land after it had ceased to be occupied and had become unproductive and subject to waste and dilapidation, where the interests of the beneficiaries of the trust would be substantially promoted by such sale.

3. So far as the power of the court to order such a sale is concerned, sec. 2100a, Stats., is merely declaratory of the common law.

APPEAL from a judgment of the circuit court for Milwaukee county: W. J. TURNER, Circuit Judge. Affirmed.

Construction of will. Sale of real estate by trustees. Briefly the findings of the court are as follows:

1. That John Plankinton died testate on March 29, 1891, leaving surviving him his widow, Annie B. Plankinton, who died October 19, 1900, his son William Plankinton, who

Upham v. Plankinton, 166 Wis. 271.

died October 29, 1905, and his daughter Elizabeth A. Plankinton, still living, sixty-three years of age, unmarried and without issue.

2. That his last will was admitted to probate on the 2d day of June, 1891; that the executrix and executor therein named qualified and the estate was duly administered and on the 10th day of February, 1893, a final decree was made and entered in the county court in the matter of the settlement of said estate, and Annie B. Plankinton continued to act as trustee to the time of her death, and thereafter William Plankinton acted as such trustee until his death.

3. That William Plankinton left as his sole and only heir surviving the defendant William Woods Plankinton; that the defendant Alexandra Stuart Plankinton is his wife; that they have two children: William Woods Plankinton, Jr., aged ten, and Elizabeth Stuart Plankinton, aged six; that the appellants were duly appointed as trustees under the will of John Plankinton.

5. That the defendant Plankinton Company is a Wisconsin corporation, and William Woods Plankinton is the owner of all of its capital stock except three qualifying shares.

6. That the defendants the Institution of Protestant Deaconesses of Allegheny County, Pennsylvania, and the Milwaukee Hospital Auxiliary are the corporations referred to in the will of John Plankinton as the Passavant Hospital.

7. That the said testator by his will, among other things, provided as follows: That Annie B. Plankington should have a life estate in the homestead, being a part of block 255 in Rogers' subdivision in the city of Milwaukee.

(For remainder of will material here, see 152 Wis. pages 296, 297, 298, 299, 300.)

8. That the location, boundary, and area of the various interests in block 255 are as shown in plaintiffs' Exhibit 1, on page 273.

9. That the rectangular northeast corner of said block, being 186.5 feet on Grand avenue and about 510.6 feet on

Upham v. Plankinton, 166 Wis. 271.

Fifteenth street, is the property designated by John Plankinton in his will as his homestead and devised to his wife; that upon said corner so designated as his homestead is located the residence occupied by John Plankinton at the time of his death and an old barn that was used by him up to the time of his death; that the balance of said block, being 313 feet on Clybourn street and approximately 323.95 feet on Fifteenth and Sixteenth streets, was vacant and unoccupied at the time of the death of John Plankinton and is now vacant; that the property designated by John Plankinton as his homestead was occupied by the widow until her death and thereafter by William Plankinton, son of the testator, and his family until his death and until some time in the year 1906, since which time it has been vacant and unoccupied excepting as used by a caretaker.

10. That the area of the designated homestead was approximately 100,000 square feet; the area occupied by the residence 9,000 square feet, and that occupied by the barn 5,000 square feet.

"11. That during the lifetime of John Plankinton and for a few years thereafter, the neighborhood of said residence was a popular residence section of the city of Milwaukee and occupied by large and expensive residences; that due to the growth of the city and change of conditions said neighborhood is no longer considered suitable or desirable for large private residences of the size and character of testator's homestead; that said neighborhood has come to have a large number of flats, apartment and rooming houses, and property in said neighborhood is beginning to be used for business purposes; that said residence cannot be rented for private residence purposes, nor can the same be remodeled and rebuilt to advantage for use for flat or apartment house purposes or for any other purposes; that said trust estate is heavily indebted and not in a financial condition to permanently improve said property, and it would not be for the best interests of said trust estate to undertake to permanently improve

the same.