We are confronted in appellant’s brief with twenty-seven assignments of error; not, however, very clearly presenting the fundamental and all-pervading error which we are convinced deprives the verdict of any efficacy and constrains us to hold that there has been an entire mistrial. The only controverted question which was answered by the jury has already been quoted in the statement of facts. Apparently that question assumed the existence of a defect, and called on the jury to decide merely whether or not such defect in fact caused the injuries complained of. That question was wholly unambiguous, and its answer apparently could mean only that the injuries were not caused by the defect complained of, but by something else,— possibly plaintiff’s contributory negligence, or possibly some other defect in the highway, such as the telegraph pole. *482But when we turn to the instructions we find the jury substantially directed to assume that contact with the stone near the wagon tracks did cause the injury, and to pass upon the question whether such stone, as situated, constituted a defect; and in so doing to pass upon and decide whether the wagon track adopted .by plaintiff was a part of the traveled way, or was so casual that his turning into the same constituted a deviation out of the road. Thus, after describing the essentials of a proper highway, the court said: “ All these things you are to take into account in determining this question, and you are to find whether or not, under these rules, that highway was in a reasonably safe and proper condition for travel. If you find that it was, then you should answer that question {Uo.’ ” And again: “ If you find that it was sufficient traveled track to justify the plaintiff or anybody else in using it, and that that stone was in such proximity to it as to be dangerous, constituting an obstruction dangerous upon that track, then you should answer this question ‘ Yes.’ If, however, you find that the town had prepared a sufficiently wide space for travel, and that this obstruction was merely in a temporary track, and one which the traveling public had no right to assume was a proper track, then that stone did not constitute a defect, and you should answer this question by £ Ho.’ ” This presents a situation from which only confusion in the minds of the jury could result. The jury took with them to their room the special verdict, plain, unambiguous, and calling for their conclusion on one question. They also took with them more or less of memory of the court’s instruction directing them to arbitrarily answer the question yes or no, according as they were convinced as to a wholly different subject. Row, while a finding either that there was no defect, or that the defect, if there was any, did not cause the injury, would justify a judgment for the defendant, we cannot persuade ourselves that there is any certainty — nay, hardly *483probability — that all of the jury .have answered either of these questions. The situation is too much like that presented' by two contradictory instructions, one of which is right and the other wrong. As has been held in this court, it cannot be presumed that the minds of all the jurymen have been guided by one or the other of such instructions, and here it cannot be presumed either that all of the jury have ignored the question put, and answered a different one, in accordance with the instruction of the court, or that all of them have ignored the instruction of the court, and answered the question as written. Some may have pursued the one course, and some the other. There is therefore no finding upon any of the controverted questions of fact, and no support for any judgment. This view renders unnecessary consideration of the many specific errors assigned.

By the Court.— Judgment reversed, and cause remanded for a new trial.