Nicholls vs. The State. common law when applied to a dwelling-house proper or other buildings within the curtilage, the legislature must be presumed to have used it in the same sense when therein applied to other statutory breakings. Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Bish. Stat. Crimes, §§ 7, 88; Ducher v. State, supra. That is to say, they must be deemed to have used the word as understood at common law in relation to the same or a like subject matter. We must hold the evidence sufficient to support the charge of breaking. 3. It is said that the second count does not charge the offense to have been committed in any place prohibited by law; "that the freight and express car of the American Express Company" mentioned therein does not describe a "railroad freight car or passenger car," mentioned in sec. 4410, R. S. One of the definitions of a car given by Webster is: "A carriage for running on the rails of a railway," illustrated by the picture of a "railway car," with these two words beneath it. Every "express car" must be a "freight car," and, to make it certain, the charge is, "the freight and express car; " but it does not follow that every "railroad freight car" is an "express car." Both courts and juries may take judicial notice of what everybody knows respecting the common incidents of railway and express carriage. Downey v. Hendrie, 46 Mich. 498; Queen v. Ruscoe, 8 Adol. & E. 386. Among these is the fact that an express car is a railroad car. We think the information sufficiently definite in this regard, especially after verdict. Queen v. Stroulger, L. R. 17 Q. B. Div. 327. 4. It is said that there was no proof that the car mentioned was the property of the American Express Company. But the question was collateral, or at least incidental, to the real issue involved, and absolute proof of ownership was not essential. The proof of the exclusive possession, occupancy, and control of the car by the express company, therefore, was sufficient proof of ownership. Ducher v. Nicholls vs. The State. State, 18 Ohio, 315, 316; Huling v. State, 17 Ohio St. 583; State v. Parker, 16 Nev. 79; Markham v. State, 25 Ga. 52. Especially is this so under our statute. Sec. 4621, R. S. Otherwise it might be at times very difficult, if not impossible, to convict, when the offense was committed in the freight car of a distant company, notwithstanding all the essential facts constituting the offense might be readily established. It is not like an entire failure of proof of title of real estate, as in Jackson v. State, 55 Wis. 589. The jury were not bound to find beyond a reasonable doubt the ownership of such car, or whether it belonged to the express company or the railway company, and the instructions asked to the contrary were properly refused. 5. During the argument of the case the district attorney animadverted to the jury upon the fact that the prisoner had not been sworn, to which his counsel objected; whereupon the court ruled: "It is probably competent to show that the offense has not been denied." The language of the district attorney is not preserved in the bill of excep tions. It merely appears that he animadverted upon the fact of his not being sworn; and the court thereupon, in effect, indicated that he was at liberty to argue to the jury that the offense had not been denied. It was a fact necessarily known to the jury that the prisoner had not been sworn. The undisputed evidence included the prisoner's voluntary admissions of guilt. Under such circumstances, and in the absence of just what was said by the district attorney, and the occasion of it, we must presume that something occurred or was said which rendered such remark proper. Williams v. State, 61 Wis. 290; Hoffmann v. State, 65 Wis. 46; Hinton v. Cream City R. Co. 65 Wis. 331-333; Gallinger v. Lake Shore Traffic Co. 67 Wis. 529. Other exceptions are sufficiently considered in what has already been said. By the Court. The judgment of the circuit court is affirmed. Muth vs. Frost. MUTH, Respondent, vs. FROST, Appellant. March 2-March 22, 1887. Court and jury: Contributory negligence. 1. In an action for the contract price for putting on a tin roof (which was blown off shortly after it was put on), it is held that the evidence conclusively shows that the roof was not properly put on and fastened, and that it was error to submit that question to the jury. 2. One who has placed his machinery in a building, with knowledge of the leaky condition of the roof, is guilty of contributory negligence which will prevent a recovery for the damage to such machinery caused by the leakage. APPEAL from the Circuit Court for Sheboygan County. In 1882 the parties entered into a contract, in and by which the plaintiff agreed to place upon a certain large building which the defendant was erecting in the city of Sheboygan for manufacturing purposes, a tin roof with standing seams, at a stipulated price per square; the defendant to furnish the materials therefor. The roof was to be as good as could be made in that city, or, as the court construed the contract, "the plaintiff was to place upon the defendant's factory a good, suitable, and fit roof for the purposes for which it was to be constructed and the place where it was to be used." The defendant furnished the materials and the plaintiff put on the roof, completing the work about the middle of November. On December 4th of the same year a large section of the roof was carried away by the wind and three days later another large section was blown off. These were high winds, but not unusually so for the season. The plaintiff repaired the roof, completing his work thereon in April; but the roof leaked badly thereafter, until the defendant replaced it with a new one in the following autumn or winter. This action is to recover the contract price for putting on Muth vs. Frost. the roof, and for the labor and materials furnished by the plaintiff in making such repairs; also for constructing gutters, concerning which there seems to be little or no controversy. The defendant answered, alleging the failure of the plaintiff to perform his said contract, and also pleaded counterclaims for damages for the loss of the materials furnished by him in the first instance, and for injuries to his machinery caused by the leaky condition of the roof. The testimony and rulings of the court on the trial are sufficiently stated in the opinion. The jury found for the plaintiff, and assessed his damages at the full amount of his claim. A motion by defendant for a new trial was denied, and judgment was thereupon entered for the plaintiff pursuant to the verdict, from which the defendant appeals. For the appellant there was a brief by Seaman & Williams, and oral argument by Mr. Seaman. Felix Benfey, attorney, and A. C. Prescott, of counsel, for the respondent. LYON, J. 1. The testimony is conclusive that the safe and proper mode of fastening down and securing the tin covering of a roof like that in question is to place cleats upon it, as near as possible to the standing seams, and nail the same to the roof-boards. These cleats should be two inches wide, should be placed at intervals of not more than twelve to fourteen inches, and each should be nailed with two nails. There is no appliance other than the cleats to hold the tin roofing in place. The testimony is also conclusive that the tin put by plaintiff upon the defendant's roof was not secured in that manner; but that in some places the cleats were placed some twenty-eight inches apart, and even a greater distance, and that many of them were fastened with but one nail. That these defects in construction were elements of weakness and rendered the tin roofing more liable to be carried away in a high wind than Muth vs. Frost. it would have been were it properly put on, is unquestionable. It is quite immaterial that very many of the cleats, perhaps a majority of them, were placed the proper distance from each other and properly nailed to the roofboards. As the weakest link in a chain is the true measure of the strength of the chain, so the defective portions of this roof give the true measure of the sufficiency of the whole roof. It does not require an expert to know that, if the tin is so defectively fastened to the roof boards in any place that the wind can get a purchase under it and raise it, the whole roofing is thereby endangered, and may be swept away, although other portions of it are properly constructed. Some attempt was made to show that openings were left in the building through which the wind entered and lifted the tin. But it is undisputed that the roof-boards were seveneighths of an inch thick, planed on both sides, and matched closely together. It does not appear that there were any holes left in it. Of course, there was no chance for the wind to get any considerable purchase under the tin roofing through the roof-boards, and it is manifest that had the tin been properly laid it would have suffered no injury. Moreover, there is a strong preponderance of evidence tending to show that no openings were left in the building. By assessing the plaintiff's damages at the full amount of his claim, the jury must have found that the tin roofing was properly laid in the first instance. Under the evidence contained in this record, the question whether the roofing was properly laid should not have been submitted to the jury. The verdict in that behalf is not sustained by the proofs, and for that reason a new trial should have been ordered. 2. After the roofing was blown off, the defendant's agent took some part in the attempt to repair the roof. It is claimed that the leaky condition of the roof after such repairs were made, resulted from the acts of such agent, and that the plaintiff is not chargeable therewith. If the roof |