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Welton vs. Poynter and another.

lands. The plaintiff's line on the east, according to his deed and the deeds of all his grantors for nearly thirty years, is a north and south line eight rods east of a certain quarter-section line. For the same length of time this line has been supposed to be marked by a fence which stands eight rods east of a line which for the same length of time, and probably longer, has been reputed to be the said quartersection line. The occupation of the plaintiff and his grantors for nearly thirty years has been up to this fence and no further, without controversy. Other conveyances of land in the same and the adjoining quarter section have been made with reference to this reputed quarter-section line, and fences built in accordance therewith, which have stood many vears and still stand. There is no evidence as to the existence of any stakes or bearing trees, or other monuments showing the original location of the line. In 1895 a survey was made by the county surveyor, and he testified that he located the line five rods east of its ancient reputed location; but he does not state how he located it, from what point he started, or whether he found an original stake or monument.

While it cannot be positively asserted that the reputed quarter-section line is located upon the line as originally surveyed, the evidence of undisputed occupation and fencing in accordance with that line for about tbirty years, not only of the piece of land in controversy but of other parcels of land in that immediate neighborhood, raises a presumption that the line so recognized is the true line and is located upon the line of the original survey. Racine v. Emerson, 85 Wis. 80, and cases there cited. So strong a presumption is thus raised in the present case that we do not regard it as overcome or seriously weakened by the simple fact that upon a resurvey, based upon no original monument, another line several rods distant is established. Furthermore, we think that the evidence here is sufficient to show a location by the parties of the line between their holdings, with the

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

obvious intention of making it the true line, which has been followed by such long acquiescence as to be binding upon the parties and their privies. Pickett v. Nelson, 71 Wis. 542– 546; Newell, Ejectment, 559, 560.

The judgment for the defendant was right, and must be affirmed.

By the Court.-- Judgment affirmed.

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ANDREWS, Respondent, vs. Chicago, MILWAUKEE & St. Paul

Railway COMPANY, Appellant.

96 348 98 163 96 349 99 364 99 388

May 6 May 21, 1897.

96 348 101 298

96 348 102 473 102 571 103

31 104 319

Railroads: Injury to employee coupling cars: Special verdict: Proxi

mate cause: Custom: Construction of statute: Improper remarks of counsel: How error may be cured.

348 4124

96 110 96 113

348

1. In an action against a railroad company for personal injuries sus.

tained by an employee, a special verdict finding that the injuries were occasioned by reason of, and as the direct consequence of," the neglect complained of, but not finding that the injury was also the probable consequence of such negligence, or that a person of ordinary intelligence, under the circumstances, ought reasonably to have anticipated that injury to the plaintiff would probably result therefrom, is insufficient to establish that such negliAndrews vs. Chicago, Milwaukee & St. Paul R. Co.

1336

gence was the proximate cause of the injury. 2. In an action by a helper on a switching crew to recover for injuries,

received while attempting to couple a car which had been kicked down a side track upon a down grade, and alleged to have been caused by the negligence of the foreman in kicking a second car down the same track without warning so that it struck the first car before the coupling had been completed, plaintiff's evidence was to the effect that his first attempt to couple the cars bad been unsuccessful, and that as the car returned after rebounding he made a second attempt without coming out from between the cars; but the evidence whether it was customary so to do was in dispute. Held, that a refusal to submit for special verdict the question of the existence of such custom was a material error.

3. Ch. 220, Laws of 1893 (regulating the liability of railroad companies

for injuries received by employees in the course of their employment), was not designed to make the company an insurer against injuries naturally and usually incident to employment as railway operatives, by excluding all question as to assumption of such risks; nor did the limitation of liability to injuries received “without contributory negligence" on the employee's part require contributory negligence to be pleaded as a defense or shift the burden

of proof in that regard. 4. Impropriety in the argument of counsel to the jury will not be

cured by the mere formal announcement that objection thereto is sustained, but to have that effect the court must at once, and plainly, direct the jury to disregard the objectionable remarks.

APPEAL from a judgment of the circuit court for Iowa county: Geo. CLEMENTSON, Circuit Judge. Reversed.

This action was brought under ch. 220, Laws of 1893, by the plaintiff, an employee of the defendant as a helper in the day switching crew of the defendant company, in its yard at Madison, Wisconsin, to recover damages for an injury sustained by him, while in the line of his duty, in consequence of the alleged negligence of the foreman of said crew, one Roach, by reason of which the plaintiff's left hand was crushed, and it became necessary to amputate his arm above the wrist. The complaint charged, as the cause of his injury, negligence on the part of the plaintiff's fellowservants or co-employees, and in particular of Roach, the foreman of the day switching crew, in the yard in which the plaintiff was engaged, for failing to follow the rules and custom governing switching therein, and that such negligence was the proximate cause of the plaintiff's injury, and asserted that the plaintiff was free from contributory negligence.

It was found by the special verdict, among other things: (1) That at the time of the injury, and for a number of years prior thereto, it was the practice and custom, in making up trains in the yard, for the helper, when a car was kicked

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

back to be connected with other cars, to catch the car so kicked back and ride it down to the other cars, and to make the coupling then and there, if he could. (2) That at the time of the plaintiff's injury, and prior thereto, it was the practice and custom, in the yard, for the foreman of the switching crew, after kicking back a car to be so coupled, not to kick back another car upon the same track until the helper who had gone with the first car had come out from between the cars, so that the foreman could see that he was in a position to catch the next car. (3 and 4) That the plaintiff and Roach, the foreman, at the time knew of the custom in these respects. (5) That the plaintiff, after he had ridden the refrigerator car down to near the stock car, alighted and went between these cars to couple them. (6) That while between said cars a car was kicked down the main track and struck the refrigerator car, driving it and the stock car together. (7, 8, and 9) That at this time the plaintiff was trying to make the coupling, and his left hand, by reason of the cars being so driven together, was caught between the drawheads and crushed, the plaintiff being in the line of his duty, and exercising ordinary care under al} the circumstances. (10, 11, and 12) That Roach, the foreman, caused the car which struck against the refrigerator car to be kicked down the main track, and knew at the time that the plaintiff had gone down that track with the refrigerator car to couple it to the stock car; that, in causing the car which struck the refrigerator car to be kicked back at the time he did, he was guilty of negligence. (13) That the plaintiff's hand was crushed while he was between the stock car and the refrigerator car, by reason of, and as the direct consequence of, the negligence of Roach.

The plaintiff's damages, if entitled to recover, were fixed at $6,000.

The defendant had asked that the following questions be sererally submitted to the jury as a part of the special verdict, but they were each rejected, namely: (5) Ought a man

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

of ordinary intelligence and prudence, engaged in the business then followed by said Roach, to have reasonably expected, under the attending circumstances, that such violation of said custom at the time and place in question would result in a bodily injury of some kind to the plaintiff? (7) At the time the plaintiff was injured, had it, for a great many years, been the uniform custom of all helpers in switching crews in defendant's yard at Madison, who have gone between cars to couple them, to come out again immediately if they failed to make the coupling the first time, and look for coming cars?

After verdict, the defendant moved, upon the minutes, to set aside the verdict and for a new trial, upon its exceptions, and because the verdict was contrary to the law and the evidence, because the damages were excessive, and because the verdict did not cover all the issues. This motion was denied, and, upon plaintiff's motion, judgment was given on the verdict for the plaintiff.

The principal questions for consideration on this appeal are: First, whether the special verdict contains a sufficient finding that the negligence found by the jury was the proximate cause of the plaintiff's injury; second, whether the court erred in refusing to submit to the jury questions Nos. 5 and 7 proposed by the defendant. No instructions were given by the court to the jury upon the question whether the negligence of the defendant was the proximate cause of the plaintiff's injury.

It appeared in evidence that there were several side tracks north of the main track in the Madison yard, designated by numbers, and they bave a slight descending grade towards the east. The train in question was a way freight from the west, consisting of twenty-two or twenty-three cars, and drew in from the main track on the side tracks 8 and 7. Plaintiff was a helper in defendant's day switching crew at Madison, which consisted of the foreman, Roach, and him

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