State ex rel. McKay v. Randall, 166 Wis. 573. in the absence of specific provisions to the contrary, its board becomes clothed with all the powers of a village board granted by sub. 1a, sec. 1548, Stats. 1915, which authorizes it to grant wholesale or retail liquor licenses. This law, it is argued, was in effect when our local option laws, secs. 1565a to 1565c, inclusive, were enacted, and the latter were intended only to suspend the action of the general law contained in sub. 1a, sec. 1548, and that where no specific provision to the contrary is contained in the charter incorporating the village, though created out of dry territory, it becomes clothed with all the powers of villages under the general law and automatically falls back under such law, and remains wet till changed by a vote pursuant to the local option law. To support this contention two cases are cited: State v. Donovan, 61 Wash. 209, 112 Pac. 260, and American Falls v. West, 26 Idaho, 301, 142 Pac. 42. The first case is squarely in point, but we cannot agree with the conclusions there reached. They seem to rest, in part at least, upon the erroneous assumption that since the legislature made no specific provision for a situation where a separate municipality is created out of a larger dry one, therefore it did not intend it to be governed by the local option law. To us it seems more reasonable to assume that the legislature intended the local option law to be broad enough to cover any situation that might arise and that all the territory of the state was at all times subject to its provisions; that if it does not in terms so provide, it should be so construed if it will reasonably permit thereof. Local option laws affect territorial areas. A state, county, town, city, or village becomes dry by a majority vote to that effect. In our state by sec. 1565a, Stats. 1915, every town, village, or city is made a local option unit, and when a town votes dry it means that no license for the sale of intoxicating liquors can lawfully be granted within the territorial limits thereof until a vote by a legal option unit to the contrary is cast. Sec. 1565b pro State ex rel. McKay v. Randall, 166 Wis. 573. vides that when a vote against license is cast in a town it shall be unlawful to deal in intoxicating liquors therein, “and any license granted or issued therein, so long as the result of such election shall remain unreversed by another election held for the same purpose, shall be void." It will be noted that the statute does not say any license issued by the town board, but any license issued therein. That means any license issued by any authority within the territorial limits of the dry town shall be void. This fixes the status of the territory till another election lawfully held changes it. Once having lawfully become dry territory its status remains such till changed pursuant to law. This interpretation is in harmony with the weight of authority on the subject and makes the local option law applicable to every situation whether specifically provided for or not. 1 Woollen & Thornton, Intox. Liq. sec. 548, and cases cited to note 24, p. 938; 15 Ruling Case Law, 335 and cases cited; Smith v. Walker, 173 Ind. 239, 89 N. E. 862, and note to same in 21 Am. & Eng. Ann. Cas. 1015. See, also, cases to the same effect cited by the attorney general and incorporated into the report of the case by the reporter. The case of American Falls v. West, 26 Idaho, 301, 142 Pac. 42, held by a divided court that under the laws of Idaho a new county formed partly out of wet territory and partly out of dry remained wet. No cases to support such a rule or statutes applicable thereto are cited by the court, and this point of the case naturally received scant treatment by the writer of the opinion of the court, who dissented therefrom. By the Court.-Order affirmed. A motion for a rehearing was denied, with $10 costs, on February 5, 1918. OWEN, J., took no part. Kadolph v. Herman, 166 Wis. 577. KADOLPH, Respondent, vs. TowN OF HERMAN, Appellant. January 8-February 5, 1918. Highways: Injury from defect: Stone near traveled track: Negligence of town: Contributory negligence: Questions for jury: Automobiles: Passing other vehicles: Special verdict: Subdividing questions: Evidence: Sufficiency. 1. Whether a town was negligent in permitting a stone about twentyone inches long and projecting nine to twelve inches above the ground to remain for years in the highway about five feet from the traveled track and in a space grown up with grass and clover, and whether there was negligence on the part of the driver of an automobile which, after turning out to pass a horse and buggy, struck such stone in regaining the traveled track, are held, upon the evidence, to have been questions for the jury. 2. A violation of sec. 1636-49a, Stats. (which makes it unlawful for the driver of an automobile, in passing another vehicle going in the same direction, to go within three feet of such vehicle at a greater rate of speed than ten miles an hour), is negligence per se, but not necessarily gross negligence. 3. Where the question of contributory negligence is submitted in a special verdict under proper instructions, there is no error in refusing to subdivide such question into different elements. 4. Notwithstanding possible inconsistencies or apparent contradictions in the testimony as to some of the details of the accident, a verdict in favor of plaintiff, who was injured when the automobile in which she was riding struck a stone in the highway, is held to have sufficient support in the evidence. APPEAL from a judgment of the circuit court for Dodge county: MARTIN L. LUECK, Circuit Judge. Affirmed. Action to recover damages for personal injuries. The automobile in which plaintiff with five others was driving westerly on the public highway in the defendant town in the forenoon of September 28, 1913, turned to the south away from the traveled track in order to pass a horse and buggy going in the same direction. After passing, the automobile turned in again, and just before regaining the traveled track its left hind wheel struck a stone about twenty-one inches VOL. 166-37 Kadolph v. Herman, 166 Wis. 577. long which projected nine to twelve inches above the surface of the ground, and the consequent jar, as it is claimed by plaintiff, threw her out of the automobile upon the road, causing the injuries for which she sued. She was the only one of the occupants of the automobile injured. The automobile went some eight to ten feet beyond the stone before coming to a stop and had the tire punctured and several of the spokes of the wheel cracked. By the special verdict the jury found that the highway was not in a reasonably safe condition for public travel; that such unsafe condition was the proximate cause of the injury; that such condition had existed for a length of time within which it might have been remedied; and by the fourth question that there was no want of ordinary care on the part of the driver of the automobile which contributed proximately to the plaintiff's injury; and assessed $1,100 as compensation. Upon judgment being entered for plaintiff for such amount the defendant appealed to this court. For the appellant there was a brief by Husting & Husting of Mayville, and oral argument by B. J. Husting and Gustave Husting. J. C. Russell of Hartford, for the respondent. ESCHWEILER, J. In substance appellant's contentions are these: (1) A motion for a nonsuit should have been granted; (2) that questions should have been submitted to the jury in addition to the fourth, in order to have them find whether or not the automobile was exceeding a speed of ten miles an hour in passing the horse and buggy, or whether in so passing the plaintiff was within three feet of the other vehicle, and in connection therewith, if such questions had been answered in the affirmative, whether such excessive rate of speed contributed proximately to the injury; (3) that the verdict was contrary to the evidence and a new trial should have been granted; (4) that the court erred in instructing the jury. Kadolph v. Herman, 166 Wis. 577. There is testimony that some travelers on the highway had noticed this particular stone in that position for a number of years preceding the accident. It is undisputed that the driver of the automobile had traveled this particular highway almost weekly for over twenty years. He did not testify, either on direct or cross examination, that he had knowledge prior to the accident of the existence of the stone at this place. There is evidence to the effect that at the time of the accident the stone was to a large extent concealed by the presence of clover and timothy surrounding it. It was about five feet to the south of the well defined traveled track, which was in about the center of the highway. The space for about ten feet to the south of the traveled track had for years been grown up with grass and clover. Some years the space had been mowed and some years it had been cropped close by cattle pasturing on the highway so as to make at such times the position of the stone more visible. There was also testimony by defendant's witnesses to the effect that after the accident they had gone to the place in question and that they had been able to see the stone without difficulty from a considerable distance to the west of the same and of where the plaintiff turned off from the traveled track. It is contended by defendant that the position of the stone at the side of the traveled track was either not such an obstruction in the highway as rendered the town liable or that its position was such that the driver of the automobile was chargeable with negligence as a matter of law in running his automobile so that it came in contact with it. We cannot, as a matter of law, say that it is not negligence for a town to allow a stone so situated as was the one here, to remain for such a length of time within five feet of the traveled tracks, and especially so in these days when the use of the highway is so given up to space-devouring vehicles like automobiles, and which new use is recognized by the numerous amendments of recent years to the law of the road by the prescribing of so many details for the driving and |