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

self and Charles Mahaney as helpers. After setting out the caboose, the train was pulled west, until about half of it was on the main track, when it was separated in the middle, so that the westerly car of the east half stood over on the main track something like four feet. That was a stock car, and the brake on it was set. The west half of the train was then pulled west beyond switch 10, and a refrigerator car thrown down the main line. After it passed No. 10 switch, the plaintiff threw that switch back on side track 10, and ran and caught the refrigerator car, and rode it down, setting the brake on the east end of it; and, when it was about six or seven feet from the stock car mentioned, he alighted from it, and went to the stock car, standing there, facing east, with his left hand grasping the slats of the stock car; and, as the refrigerator car came up, he seized the link in its drawbar with his right hand, and entered it into the drawbar of the stock car, but failed to make the coupling, because, as be testified, of the difference in the height of the drawbars, of one to two inches. The refrigerator car recoiled back twelve to nineteen inches, and commenced returning slowly again; and while it was moring, and within that distance of the stock car, and the space was not over fire or six inches between the end of the link and the stock-car drawbar, he attempted to change the link from the refrigerator car to the stock-car draw bar by reaching back and grasping the link with his left hand and the pin with his right, when another car, sent down on the main track, struck the refrigerator car all of a sudden, and it caught his hand. He testified that he had just got the link out of the refrigerator car when the car struck and his hand was caught. Evidence was given tending to show that it was dangerous to attempt to change a link within the short space and under the circumstances stated; that it was likely to result in the helper's hand being caught. It appeared from the evidence that the plaintiff had worked for about twenty years in the railway

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

car.

service, and for about three years in the Madison yard. On the part of the plaintiff, the evidence of four witnesses was given, in substance: That the duties of the foreman were to get the switching list and proceed to switch the train, and to see that there were brakes on all cars before they were cut off, and that there was a man in position to catch the cars before he cut them off, and to see if there was a man in between the cars making a coupling, and to hold the cars until he saw that man out safe before sending down another

The foreman cuts off the cars by pulling the pin. The helper throws the switches under the foreman's directions, and rides cars and couples them, and does the general work around the yard. When a car is kicked down, a helper gets onto it and rides it down, slacks it up before it strikes another car, and then gets down and makes the coupling, if he can; that is done by entering the link into the drawbar and setting the pin, and in two or three seconds. If he misses the coupling and the car stops still, then be is to set the pin and link so they will couple themselves when the cars are moved again. If the car moves back after it strikes, and then starts to move down grade again, as in this yard, the belper is supposed to stay in there and make the coupling; and, while in there for that purpose, it is the foreman's duty not to kick a car down on the same track unless he has a man to ride it down, when it is the duty of the man riding it down to stop the car before it strikes, when he sees that a man has gone in there and that he has not come out. Such was the custom at that time, and had been for several years.

The plaintiff testified that, when the refrigerator car was cut off, he caught it and rode it down; and he described his proceedings substantially as already stated, and said that there was a link in the refrigerator car as it came down, and none in the stock car; that he had hold of the link and steered it into the draw bar of the stock car,- got the link in; that he seized the pin, tried to get the pin down through

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

it, but could not, and the refrigerator car bounded back about eighteen or nineteen inches; that, when he held the link there between those two draw bars, there was a distance in addition to the length of the link, of five or six inches between the end of the link and the draw bar; that wben tbe car went back be noticed the draw bars, and one was higher than the other; that he caught the link with his left hand, and the pin with his right, and tried to change the link from the refrigerator car to the stock car, and got the link about five or six inches out of the refrigerator-car drawbar, but not into the stock-car drawbar; that, when the car bounded back, it stopped, and then started to move down very slowly; that another car was thrown down the main line and struck the refrigerator car, when his hand was caught between the cars; that it moved the cars six or eight feet, and himself along with them; that he had to walk with his band between the draw bars; that when he started to catch the refrigerator car, going down the main line, Roach started to cut a car off; that from his position he could see plainly down the track to where he (the plaintiff) was; that it was the usual practice and custom in switching and coupling cars, when the first coupling is not made, for the helper to stay in between and make a second attempt to couple the cars when they came together again.

On the part of the defendant, proof was given by several witnesses (present and former employees in said yard) that it was the general custom and practice in the yard to throw or kick down cars, one after another, upon the different tracks, without stopping to wait between cuts to see if helpers had come out from between the cars; that when the helper goes in between cars, and misses a coupling for any reason, it is his duty to come out before attempting to make it again, so that, if he is watching for another cut, he can catch it, if it is coming, and ride it down; that if a car that is cut off approaches a stationary car and hits it, and the

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

helper fails to make a coupling, it is his duty, even if it should bound back sixteen to eighteen inches, to come out before attempting to make that coupling again, and see that there is nothing else following that car that he is trying to couple; that it was the custom and practice in that yard to back in with the engine, and make up the missed couplings after the train is switched; that the duties of the helpers are to catch cars, and attend switches, and do what coupling they can; that, as between the approaching car and the coupling, it is the helper's duty first to attend to catching the car; that it was not the duty of the foreman to look out for his helpers; that the custom and practice in the yard was for each one of the crew to look out for himself; that they are supposed to look out for themselves; that they had never heard of any custom that required the foreman to wait between cuts, in sending down cars, to see whether his helpers had come out from between the cars, and had made their couplings; that it is the duty of the helper, when he misses a coupling, to come out at once and look for another

car.

For the appellant there was a brief by Burton Hanson and Geo. W. Bird, and oral argument by Mr. Hanson, Mr. C. H. Van Alstine, and Mr. Bird.

For the respondent there was a brief by Bashford, O'Connor & Aylward, and oral argument by R. M. Bashford and J. A. Aylward.

PINNEY, J. 1. The question presented by the special verdict is whether it is fairly and substantially found by it that the negligence of Roach, the foreman of the switching crew, imputable to the defendant, was the proximate cause of the plaintiff's injury. Unless this appears from the verdict, no judgment could be given on it, and a new trial would become necessary. This was so held in Davis v. C., M. & St. P. R. Co. 93 Wis. 482, in accordance with many previous

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

decisions, some of which were there cited. Kerkhof v. Atlas Paper Co. 68 Wis. 674; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158; McGowan v. C. & N. W. R. Co. 91 Wis. 147. Many other decisions to the same effect bave been made. Atkinson v. Goodrich Transp. Co. 60 Wis. 141; Block v. Milwaukee St. R. Co. 89 Wis. 378; Guinard v. KnappStout & Co. Company, 90 Wis. 123; Deisenrieter v. KrausMerkel Malting Co. 92 Wis. 164; Klatt v. N. C. Foster L. Co. 92 Wis. 624; Kucera v. Merrill L. Co. 91 Wis. 637; Kutchera v. Goodwillie, 93 Wis. 449. It is found “that the plaintiff's hand was crushed . . by reason of, and as the direct consequence of, the negligence of Roach;” that is to say, that the plaintiff's injury was the natural consequence of the negligence of Roach, the foreman, and without the intervention of any independent agency or cause for which the defendant was not responsible. Was it necessary that it should also appear from the verdict not only that the plaintiff's injury was the direct, but the probable, result, as well, of the defendant's negligence?

The law is that the negligence of the defendant must bave been the proximate cause of the injury, and the plaintiff was bound to establish this, as a necessary part of his case. When the statute providing for special verdicts was adopted, the universal rule that had theretofore existed in respect to general verdicts became at once applicable to special verdicts, namely, that a verdict must find the substance of the issue and be sufficient to support the judgment given on it, and this rule has ever since been inflexibly adhered to as to special verdicts. “A special verdict is that by which the jury find the facts only, leaving the judgment to the court.” R. S. sec. 2857. It logically follows that the question of proximate cause, which is a fact essential to a judgment in favor of the plaintiff, must appear upon the face of the special verdict. If it does not, no judgment can be given on it. The real test of the defendant's liability for the plaint

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