Kadolph v. Herman, 166 Wis. 577. passing on the highway and at intersections. The old, and almost only, rule of the pioneer days, "Keep to the right,” no longer suffices. We think it was clearly a situation within the province of the jury to determine whether proper care and attention had been given by the town in order to keep this highway reasonably safe for travel. Meidenbauer v. Pewaukee, 162 Wis. 326, 156 N. W. 144; Roeser v. Sauk Co., ante, p. 417, 165 N. W. 1086. Similarly the question of whether the driver of the automobile was exercising ordinary, and therefore proper, care on his part in driving the automobile, was properly one to be measured and determined by a jury from a consideration of the surrounding facts and circumstances. And there was therefore no error under the first point. By sec. 1636-49a, Stats., it is made unlawful for the driver of an automobile, in passing another vehicle going in the same direction, to go within three feet of any such vehicle at a greater rate of speed than ten miles an hour, and any person violating such provision shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine and imprisonment. Upon this the defendant contends that it was entitled to have the jury expressly find whether or not there was a passing of the automobile within the prescribed distance or rate of speed, and if there had been an affirmative finding on those questions that thereupon, as a matter of law, there would have been such negligence of the driver of the automobile, imputable under the law of this state to the occupant, as would have prevented a recovery for the plaintiff. In instructing the jury with reference to the fourth question of the special verdict the trial court charged them that the law forbids the driver of an automobile to go within three feet of a vehicle if he is operating his car at a higher rate of speed than ten miles an hour while passing, and that a violation of any of the requirements of the law of the road is, as a matter of law, a failure to exercise ordinary care. This was Kadolph v. Herman, 166 Wis. 577. a correct statement of the law with reference to this exact question, in that it treats the violation of such a statute, although it may be visited with a penalty, not as gross negligence, but as negligence per se only. Ludke v. Burck, 160 Wis. 440, 152 N. W. 190; Riggles v. Priest, 163 Wis. 199, 157 N. W. 755; Derr v. C., M. & St. P. R. Co. 163 Wis. 234, 157 N. W. 753. Having so properly charged them with reference to the fourth question, there was no error in not subdividing that question into different elements as requested by the defend ant. After the jury had retired for consultation they returned into court and asked for information with reference to their answering this fourth question, and the original instructions in connection with that question were again re-read to them and a further statement made by the court. Such statement at first omitted any reference to the provision of the statute as to the maximum speed allowable when passing within three feet of another vehicle, but immediately, upon suggestion of defendant's counsel, the court again stated the correct rule on that point. It is urged that the situation thus created was such as would give the jury an erroneous impression as to the rights of the defendant on this question. We can find nothing, however, that would warrant us in presuming that the jury was in any manner misled to defendant's prejudice. We cannot, therefore, sustain either the second or fourth points relied upon by defendant. The plaintiff, in support of the third point made, offered evidence to prove that with an automobile being driven at the rate of speed at which the driver of plaintiff's automobile testified he was driving, the accident could not have occurred as described by the driver and other witnesses for the plaintiff. It is undisputed, however, that the automobile did strike an object on the highway with sufficient force to cause in Harrington v. Downing, 166 Wis. 582. juries to its wheel and that the plaintiff was thrown in some manner from the automobile and injured, although there were possible inconsistencies or apparent contradictions in the testimony of certain of plaintiff's witnesses as to some of the details of the accident. Yet the main facts being so undisputed, there is sufficient in the record to support the finding made by the jury. By the Court. The judgment of the circuit court is affirmed. HARRINGTON, Respondent, vs. DOWNING and another, Ap pellants. January 8-February 5, 1918. Pleading: Defenses: Waiver of rights: Sales: Breach of warranty: Notice. 1. Matters of defense not called to the attention of the court and opposing parties during the trial so that in the determination of the issues they may be given due consideration, are effectually waived and cannot thereafter be urged as grounds for a new trial or for reversal of the judgment on appeal. 2. Thus, in an action to recover damages for breach of a warranty that a cow sold to plaintiff was sound, where the answer admitted that at the time of the sale the cow had a certain disease and the sole defense was that plaintiff accepted the animal with knowledge of that fact, it was too late, after a verdict for plaintiff and upon a motion for a new trial, for defendants to assert for the first time, as a defense, that plaintiff had not given them notice of the breach of warranty, as required by sec. 1684t-49, Stats. APPEAL from a judgment of the circuit court for Waukesha county: MARTIN L. LUECK, Circuit Judge. Affirmed. On the 4th day of May, 1914, at the city and county of Waukesha, the defendants sold to plaintiff a certain cow, known as Jennie De Kol Pauline, No. 161,219, and warranted said cow to be sound. The plaintiff alleged in his Harrington v. Downing, 166 Wis. 582. complaint that at the time of said sale and warranty said cow was physically unsound, in that it was afflicted with a disease known as mamitis and had an infectious disease commonly known as contagious abortion, and claimed damages as and for a breach of said warranty of soundness. The case was submitted to a jury and a general verdict was returned in favor of the plaintiff. From a judgment entered thereon defendants appealed. For the appellants there was a brief by Holt & Coombs, attorneys, and Lockney & Lowry, of counsel, all of Waukesha, and oral argument by A. N. Coombs. For the respondent there was a brief by Hennessey, Hennessey & O'Boyle, attorneys, and Vincent D. Hennessey, of counsel, all of Milwaukee, and oral argument by Vincent D. Hennessey. OWEN, J. Appellants contend that there was not sufficient evidence to justify submitting to the jury the question of whether the cow was afflicted with contagious abortion at the time of the sale nor to sustain an affirmative finding in that behalf. We have carefully examined the evidence and are satisfied that it was sufficient to take the question to the jury and to sustain the verdict. No useful purpose will be accomplished by a review and analysis of the evidence and no more need be said upon this branch of the case. In answering the allegation of the complaint that the cow was afflicted with a disease known as mamitis at the time of sale, the defendants alleged "that said cow Jennie De Kol Pauline was in all respects physically sound and clean except that said cow was slightly afflicted in one quarter with a disease known as mamitis, of which mamitis said plaintiff well knew at the time of purchase." Thus defendants admit that the cow was afflicted with mamitis at the time of sale, the defense being that the plaintiff had knowledge thereof and accepted the cow with such affliction. This position was strenuously maintained by defendants throughout the Harrington v. Downing, 166 Wis. 582. trial. It is believed that the trial court in its charge to the jury fairly stated the position taken and maintained by the defendants, in the following language: "The existence of the mamitis being admitted, the question for you to determine in that regard is whether or not the plaintiff waived that defect or infirmity. The defendants have the burden of proof on that question of waiver. If you are satisfied to a reasonable certainty by a preponderance of the evidence that plaintiff was informed and knew of the mamitis before he accepted and paid for Jennie, then he waived any damage caused by such condition. But if you do not so find, then you will find in favor of the plaintiff on the issue of waiver." It appears from the record that upon a motion for a new trial the attention of the court was for the first time called to sec. 1684-49, Stats., a constituent part of the Uniform. Sales Act, which provides: "In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor." And the defendants contended that the case ought not to have been submitted to the jury because there was no evidence that the plaintiff had notified the defendants that the cow had mamitis, and that the case was improperly submitted to the jury because the court did not charge that in order to hold the defendants liable it must appear that the plaintiff had notified them that the cow had mamitis. In denying the motion for a new trial the court said: "It is true that defendants duly moved to have the issue of mamitis taken from the jury. However, it was not urged, nor even suggested, that because plaintiff had failed to notify |