
    Jones, Administratrix, Respondent, vs. Milwaukee Electric Railway & Light Company, Appellant.
    
      November 14
    
    December 5, 1911.
    
    
      Interurban railways: Negligence: Death of employee: Contributory negligence: Assumption of rislc: Negligence of fellow-servants: “Railroad company:” Statutes: Construction: Trial: Questions for jury: Special verdict: Inconsistency-: New trial: Appeal: Orders: Questions reviewed: Directing judgment.
    
    1. In an action for death of a conductor on an interurban car, caused by bis being crushed between tbe wall of defendant’s station and tbe rear end of the car as it was taking a curve at tbe exit from tbe station, tbe jury found in answer to one ' question that deceased, at and prior to tbe time of bis injury, .knew of tbe dangers incident to bis employment by reason of defendant’s failure to furnish a safe place in which to perform bis duties, and then answered ih tbe negative tbe question “Did tbe failure of tbe deceased to exercise ordinary care in any degree proximately contribute to bis injury?” In connection with tbe latter question tbe court bad charged tbe jury that, if deceased knew of tbe danger, be bad assumed tbe risk of tbe employment and they should answer tbe question in tbe affirmative. No contributory negligence other than assumption of tbe risk was shown. Held, that tbe answers to tbe two questions were inconsistent and tbe court properly set aside tbe verdict on that ground.
    2. Undisputed evidence that tbe deceased bad held tbe position of conductor for more than a year and bad bad ample opportunity to familiarize himself with the situation and the movement of ears on the curve, and that about two weeks before his death he related the particulars of a narrow escape he had had from a similar injury at the same place, sufficiently established the fact that he knew of and assumed the risk.
    3. One who assumes the risk incident to working in an unsafe place assumes also the risk that a negligent act of a fellow-servant (not performing a duty which the law casts upon the master) may, in conjunction with the peril of the place, cause an injury.
    4. An electric interurban railway company is not a “railroad company” within the meaning of sec. 1816, Stats. (1898), as amended by ch. 254, Laws of 1907.
    5. Where a statute is drastic and Its burdens heavy it should not be extended by construction to subjects or persons not named therein.
    6. Where defendant moved for judgment upon the special verdict, or upon the undisputed evidence notwithstanding the verdict, or to change the verdict and for judgment thereon as changed, and plaintiff moved for judgment on the verdict, or for a new trial, but not upon the ground of inconsistency in the verdict, and the court by order granted plaintiff’s motion for a new trial upon the sole ground that the answers of the special verdict were inconsistent, an appeal by defendant from such order carried with it the right of review of that part of the order which denied defendant’s motion for judgment by granting a new trial instead.
    7. Where in such a case the inconsistency in the verdict is caused by an answer which has no support in the evidence and without which defendant would be entitled to judgment on the verdict, and there is no offer to supply additional evidence on a new trial and no probability appears of the defect being cured upon such trial, the order should be reversed and the cause remanded with the direction to enter judgment for the defendant.
    Appeal from an order of tbe circuit court for Milwaukee county: W. J. TueNee, Circuit Judge.
    
      Reversed.
    
    Tbe order appealed from granted a new trial.
    Eor tbe appellant there were briefs by Van Dylce, Rose-crantz, Shaw & Van Dylce, and oral argument by James D. Bhaw. To tbe point that sec. 1816, Stats. (Laws of 1907, cb. 254), is not applicable to defendant,
    they cited McKiver-
      
      gan v. Alexander & E. L. Co. 124 Wis. 60, 102 ]ST. W. 332; Gould v. Merrill B. & L. Go. 139 Wis. 433, 445, 121 U. W. 161; Milwaukee L., H. ■& T. Co. v. M. N. B. Co. 132 Wis. 313, 112 ET. W. 663; Chicago & N. W. B. Co. v. 0., A. & B. W. B. Co. 107 Wis. 192, 83 ET. W. 294; Murray Hill L. Co. v. Milwaukee L., H. & T. Co. 110 Wis. 555, 567, 86 ET. W. 199; Funk v. St. Paul City B. Co. 61 Minn. 435, 63 ET. W. 1099, 29 L. E. A. 208; State v. Duluth G. & W. Co. 76 Minn. 96, 78 ET. W. 1032; Luñdquist v. Duluth St. B. Co. 65 Minn. 387, 67 ET. W. 1006; Fallon v. West End St. B. Co. 171 Mass. 249, 50 K. E. 536; Scott v. Farmers’ & M. Nat. Bank, 97 Tex. 31, 75 S. W. 7, 16; Biley v. Galveston City B. Co. 13 Tex. Oiv. App. 247, 35 S. W. 826; Manhattan T. Co. v. Sioux City C. B. Co. 68 Eed. 82; Louisville & P. B. Co. v. Louisville City B. Co. 2 Duv. (Ky.) 175; Frei-day v. Sioux City B. T. Co. 92 Iowa, 191, 60 ET. W. 656; Fidelity L. & T. Co. v. Douglas, 104 Iowa, 532, 73 El. W. 1039; Sams v. St. L. é M. B. B. Co. 174 Mo. 53, 73 S. W. 686, 61 L. E. A. 475; Massillon B. Co. v. Cambria I. Co. 59 Ohio St. 179, 52 ET. E. 192; Gyger v. Philadelphia City P. B. Co. (Appeal of Montgomery) 136 Pa. St. 96, 20 Atl. 399.
    Eor the respondent there was a brief by Perry, Morton & Kroesing, and oral argument by George E. Morton. On the question of defendant’s negligence
    they cited Sparks v. Wis. Cent. B. Co. 139 Wis. 108, 120 ET. W. 858; Winkler v. Power_<& M. M. Co. 141 Wis. 244, 124 ET. W. 273; Boyce v. Wilbur L. Co. 119 Wis. 642, 97 El. W. 563; Benne v. U. S. L. Co. 107 Wis. 305, 83 ET. W. 473; Johnson v. St. Paul & W. C. Co. 126 Wis. 492, 105 ET. W. 1048; Ferren v. Old Colony B. Co. 143 Mass. 197, 9 ET. E. 608; Wood, Master & Servant, 794, § 403. On the questions of assumption of risk and contributory negligence: Citizens’ St. B. Co. v. Beed, 28 Ind. App. 629, 63 ET. E. 770; Narramore v. C., C., C. & St. L. B. Co. 96 Fed. 298; Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 ET. W. 573; Campshure v. StandardMfg. Co. 137 Wis. 155, 118 N. Wr. 633; Glary v. O., M. é St. P. B. Go. 141 Wis. 411, 123 N. W. 649. To the point that defendant was a “railroad company’7 and therefore, under sec. 1816, Stats. (Laws of 1907, ch. 254), assumption of risk was no defense, they cited, among other cases, Quackenbush v. Wis. ■& Minn. B. Go. 62 Wis. 411, 22 N. W. 519; Eolum v. Q., M. & St. P. B. Go. 80 Wis. 299, 50 N. W. 99; Schlemmer v. B.3 B. & P. B. Go. 205 U. S. 1, 27 Sup. Ct. 407; Milwaukee L., E. & T. Go. v. M. N. B. Co. 132 Wis. 313, 112 N. W. 663; Dinsmore v. B. & M. B. Go. 12 Wis. 649; Chicago é N. W. B. Go. v. MilwavJcee, B. & K. E. B. Go. 95 Wis. 561, 70 N. W. 678; Pierce v. Chicago & M. E. B. Go. 137 Wis. 550, 119 N. W. 297; Kiley v. G., M. & St. P. B. Go. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756; Chicago, M. & St. P. B. Co. v. Voel-ker3 129 Fed. 522; Blodgett v. Milwaukee E. B. ■& L. Go. 141 Wis. 329, 124 N. W. 246; Gibson v. Milwaukee L., E. & T. Co. 144 Wis. 140, 128 N. W. 877.
   Timlin, J.

George A. Jones, a conductor in the employment of the interurban service of the defendant, was killed on May 8, 1908, by being crushed between the wall of defendant’s building and the handhold for the rear entrance to one of its cars. In this action by his administratrix, grounded on negligence causing his death, there was a special verdict. The verdict found that the car was suddenly and negligently started by the motorman without giving the usual signal and that this was a proximate cause of the injury. It further found that the defendant failed to furnish to the decedent a reasonably safe place in which to work and that such failure was a proximate cause of the injury. In and by the answer to the ninth question submitted it was found that the deceased, at and prior to the time of his injury, knew of the dangers incident to his employment by reason of the failure to furnish a safe place in which to perform his duties. In answer to the tenth question the jury found that the failure of the deceased to exercise ordinary care did not in any degree proximately contribute to his injury, and in answer to the eleventh question found that the deceased was not guilty of any negligence which directly contributed to his injury. The court instructed the jury as follows:

“The tenth question: Did the failure of the deceased to exercise ordinary care in any degree proximately contribute to his injury? It is contended that the deceased assumed the risk of an accident such as occurred which caused his injury. He assumed those risks and dangers which he knew or which a person of reasonable care and prudence, under like circumstances, ought, in the exercise of ordinary care, to have known and appreciated. Therefore, if under the rule which I have just stated you are satisfied that the plaintiff assumed the risk of the accident which caused the injury to him, that is, that he knew or ought, in the exercise of ordinary care, to have known of the risk incident to the performance of his duties, then he may be said to have assumed the risk of the employment and you should so answer in your verdict, otherwise you should answer that question in the negative.”

The circuit court set aside the verdict because of inconsistency in the foregoing answers and granted a new trial. It may be observed that in the answer to the ninth question the jury affirmatively found the fact to exist upon which assumption of risk is commonly predicated. By the instruction above quoted the circuit court made the tenth question submitted cover this same ground. In a proper case this enlargement by instruction of the scope of a question is permissible. Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633, and cases cited. But contributory negligence and assumption of risk are affirmative defenses. The burden of proof is on the defendant (Nadau v. White River L. Co. 76 Wis. 120, 43 N. W. 1135), and in this case there was no contributory negligence, as contradistinguished from assumption of risk, shown. The answers of the jury to the ninth and tenth questions were consequently inconsistent and tbe verdict properly set aside on this ground. Tbe jury in effect found assumption of risk and no assumption of risk.

But tbe appellant contends also that tbe evidence was in any event insufficient to establish its liability, bence that its motion to direct a verdict in its favor, wbicb was denied by tbe order granting a new trial, should have been granted. Tbe motorman, it is argued, was a fellow-servant of tbe deceased conductor, and no liability of tbe defendant was established by tbe finding of tbe motorman’s negligence and its proximate relation to tbe injury. On tbe remaining ground of liability, namely, tbe unsafe condition by reason of tbe nearness of tbe tracks to tbe wall of tbe building and tbe curve in tbe track, causing tbe rear end of tbe car to swing over toward tbe wall when tbe car started, it is argued that tbe undisputed evidence shows that this condition was obvious and known to tbe deceased, consequently tbe risk was assumed. This involves an examination of tbe evidence.

In a building called tbe Public Service Building, owned and managed by defendant, and on tbe ground floor thereof level with tbe street, are a number of railway tracks. Tbe most northerly of these tracks runs parallel with and near to tbe inside of the north wall of tbe building for some distance. When a car is on tbe parallel part of this track tbe overhang of tbe car brings tbe north side of tbe car within about one and one-balf feet from tbe wall. Tbe cars on this track face toward and move out of tbe west exit. At a point in tbe track about twenty feet east of tbe west exit tbe track curves to tbe south, and progressively from tbe center of this curve, wbicb is about tbe west exit, by reverse curve to tbe north. When tbe front trucks of a long car take tbe curve to tbe south tbe rear end of that car is thereby swung northward so as to approach closer to tbe north wall of the building, and at one point where there is a buttress projection in tbe wall swings to within a few inches of tbe wall, and continues until tbe forward trucks take tbe reverse or northerly curve, when tbe rear end of tbe car bears away from tbe wall. Tbe train in question consisted of a forward car and trailer. It usually started from inside of tbe building on tbis north track, although tbe forward car frequently and on tbe occasion in question protruded somewhat west of tbe west exit of tbe building. Tbe deceased was conductor on tbe rear car or trailer and held that position for more than a year prior to bis death, and bad ample opportunity to thoroughly familiarize himself with tbe proximity of tbe north track to tbe north wall of tbe building, tbe curves above described, and tbe manner in which tbe rear of tbe trailer swung over toward tbe wall when tbe forward trucks thereof took tbe south curve. Tbe conductor on tbe motor or forward car testified that in a conversation with tbe deceased about two weeks prior to bis death deceased stated that be narrowly escaped that morning. Deceased said:

“I thought I beard a noise behind tbe rear end of tbe trailer. I looked out there, went around tbe side of tbe trailer to see what-tbe trouble was, and just as quick as I got there I noticed tbe car going toward tbe wall, and I got my bead in just in tbe nick of time or I would have been squashed between tbe trailer car and tbe wall.”

Tbe witness Eux testified somewhat to tbe same effect. Tbis evidence supports tbe claim of defendant’s counsel that deceased knew of and assumed tbe risk within tbe rule of tbe following cases: Sweet v. Ohio C. Co. 78 Wis. 127, 47 N. W. 182; Paule v. Florence M. Co. 80 Wis. 350, 50 N. W. 189; Burnell v. West Side R. Co. 87 Wis. 387, 58 N. W. 772; Erdman v. Ill. S. Co. 95 Wis. 6, 69 N. W. 993; Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554; Yerkes v. N. P. R. Co. 112 Wis. 184, 88 N. W. 33; Corrigan v. West Div. S. Co. 133 Wis. 77, 113 N. W. 441; Murphy v. Herold Co. 137 Wis. 609, 119 N. W. 294; Haring v. G. N. R. Co. 137 Wis. 367, 119 N. W. 325. Tbe plaintiff’s counsel makes two answers to this contention: (1) That assumption of risk, so far as it is applicable to an unsafe place, only includes those risks which arise from the proper and not those which arise from the negligent operations of a fellow-servant, even where the fellow-servant is not performing á duty which the law casts on the master. Hence that if deceased, by actual knowledge of a defect or ample opportunity to know of an obvious danger, assumed the risk arising therefrom, he did not assume the risk arising from the negligent act of a fellow-servant acting jointly with the known unsafe place to produce the injury. But the rule which absolves the master from liability where the injury is caused by the negligent act of a fellow-servant of the injured is based on the theory that, each servant assumes all risk of negligent injury by a competent fellow-servant. So the logic of this position would lead to the conclusion that where an employee was injured by the action of one assumed risk he could not recover, but if injured by the concurrent, action of two assumed risks he could recover. This is like adding two nothings to make something. (2) That the words “railroad company” in ch. 254, Laws of 1907, amending sec. 1816, Stats. (1898), were intended to include electric interurban railways, and hence that the defense of assumption of risk and that of the fellow-servant’s negligence are not available to defendant. The phrase “railroad company” is defined in this act “to embrace any company,” etc., “managing, maintaining, operating or in possession of a railroad.” In one sense an electric interurban road is a railroad. The cars run on rails. But we think it is not a railroad within the meaning of this act. The amendatory act purports to amend sec. 1816, Stats. (1898), and this section is found in the chapter relating to the ordinary steam-driven commercial railroad which is operated by a corporation organized under a statute different from that under which defendant is organized and which imposes different duties and grants different powers. Again, many of the provisions of the chapter on railroads in which occurs sec. 1816 are entirely inapplicable to electric interurban roads. In various acts of tbe legislature, such as cbs. 282,. 580, and 582, Laws of 1901; cb. 475, Laws of 1909; and cb. 366, Laws of 1911, by specially naming electric interurban railways instead of attempting to cover them by general laws relating to railroads, tbe legislature bas to some-extent indicated its understanding tbat something more definite than tbe general term “railroads” or “railroad companies” was requisite to identify as tbe object of tbe legislation these electric interurbans. Uext, tbe history of tbe statute, sec. 1816, Stats. (1898), and tbe popular use of the-word “railroad” as indicating something other than an electric interurban railway, and what we conceive to be tbe general understanding of tbe legal profession, and tbe expressions of this court in McKivergan v. Alexander & E. L. Co. 124 Wis. 60, 102 N. W. 332; Gould v. Merrill R. & L. Co. 139 Wis. 433, 121 N. W. 161; State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546, and other cases, all tend to negative this construction. It would be quite a stretch of construction for this court to bold tbat tbe heavy burdens of sec. 1816 were intended by tbe legislature to be imposed on electric interurban railways under tbe term “railroads,” when the legislature could use and is-accustomed to use tbe more specific description in legislation concerning tbe interurbans. Where a statute is drastic and its burdens heavy it is not permissible to bring within its. terms by latitudinarian construction those not named therein. This merely recognizes tbe intention which ordinarily accompanies any such command, and this principle lies at the-basis of what is called strict construction. Tbe effect of assumption of risk by tbe employee of an interurban railway company is not changed by this statute.

There remains oiily tbe question whether, upon appeal from an order granting a new trial on tbe ground tbat tbe findings in a special verdict are inconsistent, this court-can. review any other ruling, such as that denying defendant’s motion for judgment beard and decided with and by the order granting a new trial.

Upon appeal by plaintiff from an order denying a motion for judgment on a special verdict the court cannot, at the instance of defendant and to support the ruling, review the evidence to see if the verdict is supported. Wheeler v. Pereles, 43 Wis. 332. On plaintiff’s appeal from an order granting a new trial and on his separate appeal from an order denying him judgment on a special verdict the court cannot, in order to support such order, review another order holding that the complaint stated a cause of action and overruling a demurrer thereunto. Flanagan v. C. & N. W. R. Co. 45 Wis. 98. Upon appeal by defendant from an order refusing to vacate a judgment against him he cannot have a review of an order denying his application for a continuance on similar grounds. Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550. Upon appeal from an order of the circuit court appointing a trustee of an express trust in an action, this court will not consider any of the questions involved in an action to set aside the trust deed. Reigart v. Ross, 63 Wis. 449, 23 N. W. 878. On appeal from an order refusing to vacate a temporary injunction this court cannot review an order substituting a new plaintiff in the same action. Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851. Evidence offered for the party in whose favor the verdict is rendered, although improperly rejected, cannot be considered on appeal from an order granting a new trial on motion of the other party. Jones v. C. & N. W. R. Co. 49 Wis. 352, 5 N. W. 854. An appeal from an order of reassessment in an action to set aside tax certificates cannot bring up for review the ruling of the court below holding part of the taxes invalid. Spear v. Door Co. 65 Wis. 298, 27 N. W. 60; Webster-Glover L. & Mfg. Co. v. St. Croix Co. 63 Wis. 647, 24 N. W. 417. “Only matters involved in the issues closed by the determination appealed from” are reviewed. State ex rel. Kenosha G. & E. Co. v. Kenosha E. R. Co. 145 Wis. 337, 129 N. W. 600. The general rule in the federal court of appeals and in many other courts of review is that an order granting a new trial cannot be reviewed on writ of error, because the granting or refusal of a new trial rests in the sound discretion of the trial court and because such an order is not a final order or judgment. Clement v. Wilson, 135 Fed. 749, and cases. But our statute expressly gives an appeal from an order granting or refusing a new trial. Sec. 3069, Stats. (1898). We have also a statute expressly providing that upon appeals from a judgment as well as upon a writ of error to a judgment the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment. Sec. 3070, Stats. (1898). No such provision exists with reference to appeals from orders.

The defendant moved upon the records, files, and proceedings in the action and upon the special verdict for judgment. on the verdict, also for judgment upon the uncontradicted evidence notwithstanding the verdict, and in the event that both of the foregoing motions were denied, but not otherwise, for an order changing, the answers to the several questions of the special verdict to conform to the evidence, and for judgment in its favor on the special verdict so changed and amended, but did not move for a new trial. The plaintiff moved for judgment on the verdict and in the alternative for a new trial, but not on the ground of inconsistency in the answers; but the order thereon states that the motion is granted solely upon the ground that the answers of the jury to questions 9, 10, and 11 of the special verdict are inconsistent and that all other motions of plaintiff and defendant above set forth be denied. The appeal from such an order authorized by the statute seems to carry with it the right of review of that part of such order which denies the defendant’s motion for judgment by granting a new trial instead. Cases may occur in whicb this rule would work a hardship on the party in whose favor a new trial is granted, by cutting him off from supplying on the new trial evidence inadvertently omitted. But this must be guarded against by the form of motion made by the party moving for a new trial or by the form of the ruling made by the circuit court, or will be protected, in case there is shown a probability of supplying the omitted evidence, by this court in its discretion. In the instant case there is insufficient evidence to fasten liability upon the defendant. There is no offer to supply other or additional testimony on a new trial, and there is no probability that the defects found to exist can be cured upon another trial. The answers of the jury are inconsistent, but the inconsistency is occasioned by an answer which has no support in evidence. Therefore the order appealed from must be reversed and the cause remanded with directions to grant defendant’s motion for judgment.

By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment for the defendant.  