the circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought, at the time of the negligent act, reasonably possible to follow if they had been suggested to his mind.” The supreme court of Wisconsin, which fully approves the rule announced in Railroad Co. v. Kellogg, supra, say in Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. Rep. 764: “The circumstances which do in fact exist are to be determined by the jury from all the evidence, and, where they have determined what the circumstances were at the time, then they can with some reasonable degree of certainty determine the question whether the result could reasonably have been expected to occur in the light of such circumstances.” As we have said, defendant's negligence was a continuing act. In the light of the circumstances, as the jury was warranted in finding them to exist at the time, the injury was in a high degree probable. The action of the court in refusing to take the question of proximate cause from the jury was entirely correct. What we have already said will ob- viate the necessity of any detailed consideration of the errors assigned upon the instructions given and refused. The charge of the court, which we deem fair in all respects to the defendant, was substantially in accord with the views here expressed. The instructions asked and refused embodied defendant's views of the propositions we have already discussed. The main charge of the court to the jury was in writing, but the court read the sections of the statutes defining the various degrees of negligence, and made some oral comments to the jury in connection therewith. All that was said by the court was taken down by the stenographer. It does not appear that it was not written out and given to the jury upon their retirement. No exception was taken at the time to the manner of giving the. instructions. The statute (§ 5048, Comp. Laws), requires the instructions to be in writing. At the close of the instructions, counsel agreed in open court “that, at any time within which a stay was granted, either party might take his or its exceptions to the charge, or any part thereof;” and within the life of this stay defendant took exception to the giving of oral instructions, but not to the matter of the instructions so given.
