
    Baltzer, Respondent, vs. Chicago, Madison & Northern Railroad Company, Appellant.
    
      October 5, 1894
    
    
      February 5, 1895.
    
    
      Railroads: Injury to brakeman making coupling: Negligence and contributory negligence: Court and jury: Evidence: Instructions: Damages.
    
    1. In an action for injuries sustained by a brakeman while riding upon the pilot of an engine and attempting to couple the engine to a car upon a spur track, it is held that the evidence tends to show that the engineer was negligent (1) in running the engine at a dangerous rate of speed upon the spur track and when it struck the car; (2) in not paying attention to the coupling and regulating the motion of the engine accordingly, even without any signal from the plaintiff.
    2. The evidence — tending to show, among other things, that plaintiff was in a proper place on the pilot; that he had to raise and hold up a long and heavy drawbar, ready to enter it into the drawhead of the car; that he remained in this place to the last moment, supposing (as he had a right to do) that the engineer would slow up or stop the engine; and that when the collision came it was too late for him to escape — is held to have warranted the jury in finding that plaintiff was not guilty of contributory negligence.
    8. A witness may be allowed on the trial to correct his testimony contained in a deposition.
    4. It is not error for the court to read the pleadings to the jury, that' they may know the real issues in the ease.
    5. An award of §10,000 for a very severe injury, necessitating amputation of the left arm of a young man nineteen years old, previously healthy, strong, and capable of labor, is held not excessive.
    Appeal from a judgment of the circuit court for Green-county: John R. Bennett, Circuit Judge.
    
      Affirmed.
    
    Action to recover damages for personal injuries sustained: - by plaintiff while working as a brakeman in the employ, of: the defendant, and alleged to have been caused by the negligence of the defendant and its servants. The facts are stated in the opinion and in the report of a former appeal, 83 Wis. 459. There was a verdict for the plaintiff, assessing-bis damages at $10,000. From tbe judgment tbereon tbe defendant appealed.
    For tbe appellant there was a brief by P. J. Glcnvson, attorney, and JB. J. Stevens and John D. Gurnee, of counsel, and oral argument by Mr. Stevens and Mr. Clcmoson.
    
    They contended, mt&r alia, that plaintiff’s own testimony shows that be was guilty of contributory negligence (1) in suffering tbe engineer to run bis engine down tbe grade of the spur -track at six miles an hour up to within two or four feet of tbe flat car, without giving him a signal to slacken tbe speed, and (2) when, knowing that the engine was running at an unusual rate of speed, be moved forward on tbe pilot for tbe purpose of making tbe coupling by picking up tbe drawbar, thereby placing himself in tbe most dangerous position possible, without first giving a signal to slacken speed. Kennedy v. Lake Superior T. & T. Co. 81 Wis. 28 ; Loekwood v. C. <& N. V. K. Co. 55 id. 50; Pennington v. D., N. H. dé M. K. Co. 90 Mich. 505. If tbe negligence of tbe plaintiff contributes directly to tbe injury, be cannot recover, even though tbe negligence of tbe defendant also contributed thereto. Gibbons v. Wis. V. K. Co. 62 Wis. 546; Sehomfeld v. Mibwaxkee G. K. Co. 14 id. 433; Matteson v. Jaekman, 32 id. 182; O’Donnell v. M. P. B. Go. 1 Mo. App. 190. It is contributory negligence of an aggravated character on tbe part of an employee to disobey reasonable rules and regulations enacted to protect him from injury. Memphis dh C. B. Co. v. Askew, 90 Ala. 5; Dyon v. D., L. do L. M. B. Co. 31 Mich. 429. In general, negligence on the part of a brakeman in making couplings, if it amount to a want of ordinary care contributing proximately to tbe cause of tbe injury, will prevent a recovery. Muldowney v. 1. C. B. Co. 39 Iowa, 615; Toledo, W. <& W. B. Co. v. JBlaek, 88 Ill. 112; Kelly v. Abbot, 63 Wis. 301. When a person,, voluntarily and for bis own convenience, undertakes to perform tbe duty in a hazardous manner, when there is a perfectly safe way of doing it, be is wanting in ordinary care wbicb is fatal to recovery. St. Louis B. da 1. Go. v. Brennan, 20 Ill. App. 555; Cunningham v. O., M. da St. P. B. Go. IT Eed. Rep. 882; Holland v. G., M. da St. P. P. Go. 18 id. 243; PaAlroad Go. v. Jones, 95 U. S. 439; Foster v. O. db A. P. Co. 84 Ill. 164. A negligent act cannot be excused by showing that others did the same thing, or that they were in the habit of performing certain work in a negligent manner. Ferguson v. Cent. I. P. Go. 5S Iow'a, 293; Ghieago, etc. P. Go. v. Clark, 15 Am. & Eng. R. Cas. 261; Southern Kansas P. Oo.'v. Rdbbi/ns, 43 Kan. 145; Hamilton v. I). M. Y. P. Go. 36 Iowa, 31. The verdict is unreasonably large and evinces partiality and preiudice on the part of the iury. Brown v. S. P. P. Go. T Utah, 288.
    Eor the respondent there was a brief by B. F. Duwwid-die and John B. Dunwiddie, attorneys, and Geo. W. Bird, of counsel, and oral argument by Mr. B. F. Dunwiddie and Mr. Bird.
    
    They argued, among other things, that the plaintiff was not guilty of contributory negligence within the authorities. Dyítle v. Q. daW. M. P. Go. 84 Mich. 289; McKean v. B. G. P. Go. 55 Iowa, 192; Bennett v. K. P. P. Go. 2 N. Dak. 112; Lockhart v. L. P. da M. P. Go. 40 Eed. Rep. 631; Louisville da H. P. Go. v. Watson, 90 Ala. 68; Lndiana/polis da O. P. Go. v. McOlure, 26 Ind. 3T4; Jeffrey v. K. db D. M. P. Go. 5 Am. & Eng. R. Cas. 568; Mo. Pac. P. Go. v. Me Gaily, 41 Kan. 639; Gent. P. db B. Go. v. Keighbors, 83 Ga. 444; James v. K. P. P. Go. 46 Minn. 168. This is not a case warranting even a remission of a part of the verdict. Berg v. G., M. db St. P. P. Go. 50 Wis. 419; Union Pac. P. Go. v. Young, 19 Kan. 488; Ketchum v. T. db P. P. Go. 38 La. Ann. TTY; Robinson v. W. P. P. Go. 48 Cal. 409; Dougherty v. Mo. Pac. P. Go. 9Y Mo. 64Y; Gulf, O. ds S. F. B. Go. v. Gordon, TO Tex. 80; Chicago G. P. Go. v. Wilcox, 33 I1L App. 450; Taylor v. Mo. Pac. R. Go. 16 S. W. Rep. 206; Bowers v. U. P. P. Co. 4 Utah, 215; Galveston, H. db S. A. 
      
      P. Go. v. Porfert, 72 Tex. 844; Furnish <o. Mo. Pao. P. Go. 102 Mo. 438; Trinity <& 8. P. Go. v. Lane, 79 Tex. 643; Texas P. P. Go. v. Johnson, 76 id. 421; Texas M. P. Go. v. Douglass, 69 id. 694; Griffith v. Mo. Pao. P. Go. 98 Mo. 168; Meddles v. G. c& FT. W. P. Go. 77 Wis. 228.
   Tbe following opinion was filed October 23, 1894:

OktoN, C. J.

Tbe testimony in tbis case is not materially different from tbat on tbe first trial, and tbe facts were fully stated on tbe former appeal, in 83 Wis. 459. On tbe last trial tbe jury found a verdict for tbe plaintiff, and assessed bis damages at $10,000. Tbe learned counsel of tbe appellant, in tbeir brief, assign as errors (1) tbat tbe engineer, in tbe management of bis engine, was not negligent; (2) tbat tbe plaintiff’s negligence' contributed to bis injury; (3) tbat tbe court erred in putting questions, and in its rulings at tbe trial, denying motion for a new trial, and in its charge to tbe jury; (4) tbat tbe verdict is contrary to tbe evidence and excessive.

Tbe first two assignments of error present questions of fact on tbe evidence. On the former appeal, Mr. Justice PiNNey said in tbe opinion: “We think tbat it may be fairly claimed tbat tbe evidence of contributory negligence on tbe part of tbe plaintiff was such, at least, tbat different minds might well come to different conclusions in respect to it and as to whether tbe plaintiff should recover.” Tbis embraces tbe merits of tbe case, and shows bow tbis court viewed these two questions as tbe case was presented on tbe former appeal by tbe evidence. It is conceded tbat tbe evidence on tbe last trial is not materially different. Tbis, perhaps, should be conclusive of these two questions. Tbe above language of Mr. Justice PiNNey is a perfect definition of questions of fact on tbe evidence which should be left exclusively for tbe jury to decide, and a sufficient reason for not disturbing tbe verdict on tbe merits. But tbe learned counsel on both, sides have treated these two questions as open on this appeal, by very full and elaborate briefs and arguments. I have therefore thought it proper to mention some of the more prominent facts which have induced us not to interfere with the verdict on these questions:

1. We think that there was evidence, which the jury had the right to believe, which tended strongly to show that the engineer, Platt, was negligent (1) in running his engine on the spur track, so near the flat car to be coupled with it, at the dangerous speed of six miles an hour, and in running the engine at the speed of three miles an hour when it struck the flat car; (2) the engineer was negligent in not paying any attention whatever to the coupling of his engine with the flat car. He seemed to be as indifferent about the coupling as if he had no duty to perform other than to drive ahead as on an open track. He did not even look at the car that was to be coupled so near in front of his engine, until he heard the agonizing voice of the plaintiff when injured by the collision. He was at that time looking another way. Whatever might be his duty in the ordinary coupling of cars distant from the engine, whose drawheads or bumpers are alike and on a level, as to acting only on the signal of the brakeman, there was evidence that in this instance it was his duty to regulate the motion of the engine and adapt it to the flat car to be coupled-with it, without any signal. This would seem reasonable. The engineer was standing in his cab, only a few feet from the end of the pilot, and could see the flat car and how and when he Avould come in contact with it, as well as the brakeman standing on the pilot with the heavy drawbar in his hand. The engineer had nothing else to do but to regulate the motion of his engine, but the brakeman had to stand on the end of the pilot, with Ms toes between the bars to keep from falling off, and raise and hold up the heavy drawbar, and look to the drawhead of the flat car to be entered. It ' would seem that tbe brakeman, standing on' sucb a precarious looting, bad enough to do to make tbe coupling, without regulating tbe motion of tbe engine. Tbe testimony tends very strongly to show tbe negligence of tbe engineer, and the jury bad tbe right to so find.

2. Tbe testimony tended strongly to show that tbe plaintiff was not negligent: First, there was evidence that be was in a proper place on tbe pilot to make tbe coupling. Tbe drawbar was long and heavy, and extended nearly to tbe point of the pilot. Tbe plaintiff bad to raise it and bold it up in bis left band, ready to enter it into tbe drawbead of the flat car. Tie bad tbe right to bebeve that tbe engineer would slow up tbe engine in proper time for him to do so, but then tbe engine came at tbe speed of at least three miles an hour. Tbe pilot was driven far under tbe flat car, tbe bumpers came together with great force, and tbe flat cars were driven back. This was all done in an instant. Tbe plaintiff was thrown over on tbe flat car, and then back high up on tbe pilot, and bis arm in some way was crushed. He was fortunate in not being killed. What should be have done ? He could not jump out from between tbe cars safely, as be testifies, even if be bad time to do so, I am unable to conceive bow tbe plaintiff could have walked along by tbe side of tbe pilot, and raised and held up that heavy drawbar, and made tbe coupling with safety. But in this case it was well that be did not attempt it. Tbe plaintiff remained in bis proper place to tbe last moment, supposing that tbe engineer would slow up or stop tbe engine, and when tbe collision 'came it was then too late for him to escape. He knew that tbe engineer could see tbe fiat car as well as himself, and be bad tbe right to depend upon bis slowing up at tbe proper time. There appears to have been evidence sufficient to warrant tbe jury in finding that tbe plaintiff did not contribute to bis injury by bis own negbgence.

3. Under this bead tbe learned counsel of tbe appellant assigns three errors: (1) The court put questions to the witnesses; (2) denied the motion for a new trial; (3) in instructing the jury. (1) It is not claimed that the questions put by the court on the trial were improper, but that they “ disclosed sympathetic bias on the part of the court.” The least that can be said on this point is that this does not appear. (2) Permitting the witness to amend his deposition. This, as we understand it, was the correction of his own testimony, and that was proper. That should not be denied to any witness. We have sufficiently disposed of the question whether a new trial should be had on the merits. (3) The learned counsel has not pointed out in his brief the specific instructions claimed to be objectionable. The point is too general. There was nothing improper in the court’s reading the pleadings to the jury, that they might know the real issue in the case. We have carefully read the instructions of the court to the jury, and they appear to have been correct, judicious, and fair.

4. The verdict was clearly sustained by the evidence, and does not appear to be excessive in the amount of damages. The plaintiff ivas only nineteen years old, and previously healthy, strong, and capable of labor. The injury was a very severe one, and permanent. We are unable to find any error in the record which ought to reverse the judgment.

By the Court.— The judgment of the circuit court is affirmed.

A motion for a rehearing was denied February 5, 1895.  