Breed v. Breed, 125 Wis. 100. or related to her separate property, however much the parties may have contemplated that the personal liability attempted to be assumed was to be satisfied out of such separate estate, presents a contract not within the power of a married woman and one which creates no legal liability. 2. In such case, after trial and verdict in favor of claimant, the court should have granted a motion by the administrator for judgment notwithstanding the verdict. APPEAL from a judgment of the circuit court for Waupaca County: CHAS. M. WEBB, Circuit Judge. Reversed. Claim filed in county court against estate of Catherine M. Breed, alleging that the respondent on March 23, 1898, entered into an oral contract with the deceased and her husband to work and care for them, and for the survivor if either should die, for which they jointly and severally promised to pay her the reasonable value of her services; that the deceased, Catherine M. Breed, died the following day, and that respondent performed such services during that day and continuously until the death of John E. Breed on December 30, 1902, and has been paid only $40.50. The claim was disallowed in county court. Upon appeal to and trial in circuit court the defendants objected to the sufficiency of the complaint, and moved for nonsuit and for direction of verdict on the ground that such contract was invalid by reason of the coverture of Catherine M. Breed; but verdict was rendered in favor of respondent in the sum of $928.50 and interest from the filing of the claim. Thereupon defendant moved for judgment on the evidence and that the verdict be set aside, which being denied and exception saved, he made due motion for new trial, which was denied and judgment entered in claimant's favor for the amount found. The administrator and four of the five children, heirs at law of Catherine M. Breed, appeal therefrom. For the appellants there was a brief by F. A. Eberlein, attorney for the heirs, and Eberlein & Eberlein, attorneys for the administrator, and oral argument by M. G. Eberlein. Pumorlo v. Merrill, 125 Wis. 102. For the respondent there was a brief by E. L. & E. E. Browne, and oral argument by E. E. Browne. DODGE, J. The complaint presents a mere personal promise by a married woman living with her husband to pay for certain family expenses, which in no wise concerned or related to her separate property, however much the parties may have contemplated that the personal liability attempted to be assumed must be satisfied out of such sepárate estate. Such a contract is not within the power of a married woman and creates no legal liability. Stack v. Padden, 111 Wis. 42, 86 N. W. 568. The court should have granted the motion for judgment notwithstanding the verdict. By the Court.-Judgment reversed, and cause remanded with directions to enter judgment affirming the order of the county court. PUMORLO, Respondent, vs. CITY OF MERRILL, Appellant. April 7-May 2, 1905. Municipal corporations: Negligence: Defective sidewalk: Injuries to pedestrian: Evidence: Notice to municipal authorities: Instructions to jury: Burden of proof: Requests for instructions: "Ordinary care:" Trial: Appeal and error: Damages. 1. In an action for personal injuries, evidence as to the bad general condition of a sidewalk, stated in the opinion, is held competent for the purpose of showing notice to the city officers of the general defective condition of the walk, it being by the instructions of the court properly confined to that issue. 2. In an action for personal injuries alleged to have been caused by a defective sidewalk, instructions to the jury as to the burden of proof, stated in the opinion, are held to be, in effect, the same as a requested instruction on the same subject. 3. In an action for personal injuries alleged to have been caused by a defective sidewalk, the court instructed the jury: "The words 'ordinary care' mean such prudence and care as an ordinarily Pumorlo v. Merrill, 125 Wis. 102. careful person would use under the same or like circumstances;" and again in another part of the charge: "The reasonable diligence here mentioned required of public officers of a city having charge of its public streets and walks means such diligence as like officers with like responsibilities usually and ordinarily employ in the discharge of their duties." Held, that while the court did not adopt expressions which had been repeatedly approved by the supreme court, and such departure is not the best and safest practice, yet the terms employed in the instructions defining "reasonable diligence" and "ordinary care" are in form and substance as required and approved by that court. DODGE, J., dissents from the approval of the instruction defining "reasonable diligence." 4. When a particular form of expression for the enunciation of a rule of law has been sanctioned and approved as correct and best adapted for conveying an idea to a jury, it should be adhered to by the trial courts to avoid the liability and danger of errors which are liable to follow the use of different terms and a new phraseology. 5. To warrant the giving of an instruction as to the rule Falsus in uno, falsus in omnibus, there must be such sufficient basis in the evidentiary facts and circumstances adduced as tends to show there was wilfully false swearing. 6. Whether such rule applies in a given case is primarily a question for the trial court and not for the jury. 7. In determining the propriety of giving instructions as to the rule Falsus in uno, falsus in omnibus, the trial court must take into consideration that wilful false swearing is not to be imputed to a witness when it clearly appears that discrepancies, conflicts, and contradictiors in the evidence are manifestly honest mistakes, due to faulty observation, imperfect recollection, or mistaken impressions of facts. 8. In such case the decision of the trial judge should be affirmed on appeal, unless it clearly appears it was erroneous. 9. In an action for personal injuries caused by a defective sidewalk, under the evidence, stated in the opinion, it is held that the trial court properly refused to give a requested instruction as to the rule Falsus in uno, falsus in omnibus. 10. In an action for personal injuries, where there was evidence that plaintiff's spine was affected, that this difficulty extended into the neck, causing much pain in the neck and head, that she suffered much from severe headaches, and that she was often afflicted with coma,—an instruction on the question of damages: "You should consider the nature and extent of her injuries and physical pain and suffering, and the mental injury and anxiety Pumorlo v. Merrill, 125 Wis. 102. which she has endured, and the extent of impairment, if any, of her physical or mental powers, or both, which you believe from the whole evidence to have been brought upon her by reason of such injuries," is held justified. 11. Where the charge as given by the court is a complete, plain, and direct statement of the rules of law applicable to the case, free from obscurity or argumentation, and sufficiently advises the jury on every rule of law involved in the determination of the issues of fact submitted to them, it is unnecessary to specifically consider errors assigned upon rejected instructions. 12. When and when not to give mere explanatory instructions to the jury is almost wholly a matter of judicial administration, as to which the supreme court will do no more than judicially advise. APPEAL from a judgment of the circuit court for Waupaca county: CHAS. M. WEBB, Circuit Judge. Affirmed. Action to recover damages for personal injuries alleged to have been caused by the insufficient and defective condition of a sidewalk on one of the streets of the defendant, an incorporated city. It appears that on the 14th day of August, 1901, the plaintiff, while walking over one of the sidewalks on one of the public streets of the city, known as Main street, stepped into an opening in such walk, causing her to fall. This walk extends along the north side of a street connecting the part of the city known as the West side with the part known as the Sixth ward. The walk is on one of the principal streets of the city, and is much frequented and used by pedestrians. The walk was constructed of stringers placed lengthwise of the walk and of planks placed crosswise, nailed thereto. The stringers rested on supports, which elevated the walk above the surface of the ground. It is alleged that this walk at the time in question was defective and insufficient, in that the material composing it was so worn and decayed that many parts had loose and broken boards, and that there were large openings or holes in the walk, and that such defective and insufficient condition had existed for a number of weeks before the accident happened, and for Pumorlo v. Merrill, 125 Wis. 102. such a length of time that the city officers, in the exercise of ordinary care, ought to have discovered such insufficiency and to have repaired it before the injuries were occasioned thereby. The plaintiff stated that while she was walking over this sidewalk on the day in question at about the hour of 8 o'clock in the evening, and while in the exercise of ordinary care, she stepped into a large hole in the walk, which caused her to fall, and produced the injuries and consequent pain and sickness from which she suffered. Plaintiff caused a notice in writing to be served on the city, as required by sec. 1339, Stats. 1898, and presented a claim against the city for compensation for the damages she had sustained. This claim was disallowed, and thereupon she appealed from such disallowance to the circuit court, where she prosecuted this action. The action was tried before the court and jury. The jury rendered a special verdict and found: (1) That the sidewalk at the time and place in question was not reasonably safe for public use. (2) That the condition of the sidewalk at the place of accident was the proximate cause of plaintiff's injuries. (3) That the hole in the walk into which plaintiff stepped had existed continuously for three weeks or more immediately prior to the injury. (4) That the hole in question existed continuously for such a length of time before the time of the accident that the city authorities, in the exercise of ordinary care, ought to have known of it and to have repaired it before the injury was received. (5) That no want of ordinary care on the part of the plaintiff proximately contributed to the injuries. (6) That the sum of $3,000 would compensate plaintiff for the injuries sustained. The defendant moved for judgment notwithstanding the verdict, on the ground that the evidence did not support the verdict. This motion was denied. Thereupon it moved for a new trial because the court erred in the reception and rejection of evidence and erred in instructing the jury, and because the verdict was contrary to the evidence and the law, |