#### Sullivan, Administrator, Respondent, vs. Minneapolis, St. Paul & Sault Sainte Marie Railway Company, Appellant.

*March 6*

June *19, 1918.*

*Master and servant: Injury to braheman: Defective handhold on car: Evidence: Sufficiency: Interstate commerce: Federal statutes: Proximate cause: Appeal: Review: Motion for new trial, when unnecessary: Expert testimony:• Hypothetical questions: Assuming facts: Province of jury: Opinion as to cause of death: Damages: Competency of evidence: Special verdict: Instructions to jury: Burden of proof.*

1. In an action for the death of a brakeman, although there was no eye-witness of the accident, the evidence is *held*to sustain findings by the jury that he was injured by a fall from defendant’s freight car caused by the giving way of a .defective handhold, and that his death was caused in whole or in part by the injuries so sustained.

2. Errors committed by the trial court, such as the impróper admis*519sion oí testimony, may tie reviewed on appeal from the judgment although there was no motion for a new trial, such motion being necessary only to preserve for review errors committed by the jury.

3. A party has the right to the opinion of an expert witness on the facts of the case as he claims them to be, and may propound hypothetical questions assuming as proved all facts 'which the evidence tends to prove.

4. Notwithstanding the general rule that an expert witness should not be permitted to give his opinion upon the ultimate fact to be found by the jury, when such ultimate fact is a'scientific question, as whether or not the death of a person was the result of a fall which he sustained, the opinion of an expert may be given without invading the province of the jury.

5. In an action for the loss to his mother resulting from a brakeman’s death, a sister of the deceased was properly permitted to testify that he had expressed his intention and purpose of remaining single and not marrying. ,

6. In an action for the death of a brakeman who was injured by reason of the giving way of a defective handhold on a freight car in interstate commerce, such action being governed by the federal safety appliance and employers’ liability acts, a question submitted in the special verdict as to whether his death was “caused in whole or in part by the injuries so sustained by him” is *held*preferable in form to a question proposed by defendant, “Was the death . . : caused by any injury suffered at the time ... or was it caused by disease?”

7. An instruction as to direct and remote cause, in connection with the question submitted as above stated, was not necessary and would have been out of place, proximate cause having nothing to do with liability under the federal acts.

8. If elucidation of a question in a special verdict is deemed necessary by counsel, they should submit a request therefor.

9. Where the charge to the jury states that the burden of proof js upon the plaintiff and that it is incumbent upon him to establish the fact, as he claims it to be, to the satisfaction of the jury by a preponderance of the credible evidence in the case, the court need not add that the jury should be satisfied “to a reasonable certainty,” that phrase being mere surplusage when used in such connection.

Appeal from a judgment of the circuit court for Douglas • county: E. B. Beldef, Judge.

*Affirmed.*

This action was brought by the administrator of tbe estate *520of Bernard M. Oonway, deceased, to recover damages for personal injuries sustained by said deceased while in tbe employ of tbe defendant as a brakeman in its yards in tbe city of Superior on tbe 20tb day of March, 1910, and for tbe loss resulting to Bridget Oonway, bis mother, on account of bis death resulting from tbe accident. Tbe case was tried before a jury and tbe following special verdict returned;

“(1) Was tbe deceased, Bernard M. Oonway, injured by falling from defendant’s car ? *A.*Yes.

.“(2) If you answer tbe first question ‘Yes,’ then answer this: Was such fall caused in whole or in part by tbe grab iron in question giving way ? *A.*Yes.

“(3) Was tbe grab iron in question defective at tbe time in question ? *A.*Yes.

“(4) If you answer tbe first, second, and third questions ‘Yes,’ then answer this: Did tbe fact that such grab iron was • defective contribute in whole or in part to cause Conway’s injuries complained of ? *A.*Yes.

“(5) If you answer tbe fourth question ‘Yes,’ then answer this: Was Conway’s death caused in whole or in part by tbe injuries so sustained by him? *A.*Yes.-

“(6) Did any want of ordinary care on tbe part of Oon-way proximately contribute to cause bis injuries and death ? *A.*No.

“(7) What sum of money will reasonably compensate Bridget Oonway, mother of Bernard M. Oonway, for her pecuniary loss sustained by bis death ? *A.*$2,000.

“(8) What sum of money will be reasonable compensation for tbe physical and mental p@¿n and suffering endured by Conway from tbe time of bis injury, if be was so injured, to tbe time of bis death, as tbe result of such injury? *A.*$1,500.”

From a judgment rendered in favor of tbe plaintiff on such special verdict tbe defendant appealed.

For tbe appellant there was a brief by *Luse, Powell & Luse*of Superior, attorneys, and *A. H. Bright*and *J. L. Brdall*of Minneapolis, Minnesota, of counsel, and oral argument by *L. K. Base.*

*521TF. P. *Crawford*of Superior, for tbe respondent.

Tbe following opinion was filed April 3, 1918:

OweN, J.

Tbe defendant moved to direct a verdict in favor of tbe .defendant; for judgment notwithstanding tbe verdict; to change tbe answer “Yes” to tbe first question of tbe special verdict to “No;” to change tbe answer “Yes” to tbe fourth question of tbe special verdict to tbe answer “No;” and tbe answer “Yes” to tbe fifth question of tbe special verdict to tbe answer “No.” At all times tbe appellant has maintained that tbe evidence was not sufficient to sustain tbe verdict or a judgment in favor of tbe plaintiff, and that tbe plaintiff utterly failed to make out a case against tbe appellant. This calls for a brief review of tbe evidence to determine whether tbe verdict has any support therein.

It appears that tbe deceased was a brakeman in tbe employ of tbe defendant. At about 2 o’clock a. m. March 20, 1916, be was assisting in taking a drag of cars from tbe defendant’s Belknap yard in tbe city of Superior to tbe South Shore Railway Company’s yard in tbe same city. He was tbe rear brakeman on this drag of cars. It was passing from a lead or switch track to tbe main-line track. There were eight or nine cars in tbe drag. It was tbe duty of tbe deceased to close tbe switch after tbe cars bad passed onto tbe main track. While tbe cars were passing over tbe switch Conway (or bis lantern, as it was dark) was seen on top of tbe cars near tbe rear end of tbe drag. He would naturally be in this locality at tbe time in order to descend from tbe rear car and close tbe switch when tbe drag bad passed over and onto tbe main track. Suddenly bis lantern was seen to go out, and nothing more was seen or beard of Conway until about ten minutes later, when be climbed into tbe engine of a rear drag of cars following along behind tbe one on which be was working, with bis unlighted lantern in one band and a handhold or ladder round in tbe other. He was very pale and *522in a dazed and semi-conscious condition, but with no scratch, bruise, scar, or other external evidence of injury upon him. No evidence was given as to what he said. He “crumbled up” and was assisted upon the fireman’s seat box. He was rubbing his right leg and appeared weak and somewhat faint — not a dead |aint. He was taken by this engine to the depot, where he was carried to an ambulance and taken to the hospital.

Appellant concedes that the evidence showed that a handhold in the ladder upon O. P. car No. 89652 was broken off about half way up on the car and that this handhold was the one which Conway had in his hand when he came into the cab of the engine. It is also conceded that this car was in interstate commerce. There was also evidence that this car was near the rear end, if not the last car, in the drag. There was a fresh break on one side of the ladder round and an old break with rust on the otter. When he was taken to the hospital he was suffering from a brain lesion. He remained in the hospital until the 13th day of April. He was not cured or well when discharged from the hospital and was never well again. He was later committed to an insane hospital at Newberry, Michigan, at which institution he died on the 30th day of July, 1916. The cause of his death was given as “paralysis of the insane.”

The medical experts who testified in the' case agreed that a man may receive an injury on the head from a fall without any exterior marks on his person; that this fall, slight or great, may be sufficient to produce a brain lesion and may result in insanity and death.

. It is a very logical inference from the facts proved in this case that a defective ladder round or handhold on O. P. car No. 89652 broke and gave way while Conway was either ascending or descending the car in the performance of his duties, and that as a result thereof Conway fell to the ground and was injured, and that the finding of the jury to the ef-*523feet that Conway was injured by falling from defendant’s car is not without evidence to support it.

It was the contention of the defendant that the deceased was a victim of syphilis, and that his death was due to syphilis'and not to injury. The evidence is quite persuasive that he did have syphilis. But it was not at all conclusive that his death was not due, in whole or in part, to the injuries received by him. It is in evidence that when Conway went to work that night he appeared to be in proper mental and physical condition for the performance of his duties. It appears that he did satisfactorily perform the duties of a brakeman until the exact moment of the happening of .this accident, and immediately upon the happening of the accident he became incompetent and incapacitated for work of any kind. Within a very short time after his arrival at the hospital it was determined by the doctor called to attend him (who, by the way, was in the employ of appellant) that he was suffering from a brain lesion. Appellant contends that-the brain lesion might have resulted from syphilis. This appears to be true. It might have resulted from syphilis. It is also true that it might have resulted from the injury sustained by him, according to all the medical experts who testified in the case. The question submitted to the jury was whether his death resulted in whole or in part from the injury sustained. That was the question they were called upon to determine. The evidence furnishes some basis for their conclusion that the accident and resulting injury had something to do with his death. We may confess strong suspicions that his syphilitic condition was principally, if not wholly, responsible for his death. We cannot say, however, that there was no evidence in the case from which the jury might find that his death was due either wholly or in part to the accident. We therefore think that the verdict of the jury should not be disturbed, nor should the court have granted appellant’s motion for direction of a verdict.

*524Appellant urges upon our attention various asserted errors of tbe trial court in tbe improper admission of testimony offered by tbe plaintiff. Counsel for respondent vigorously protests that errors committed by tbe court in tbis particular cannot now be considered because no motion for a new trial was made in tbe court below. Counsel is in error. It is tbe settled law of tbis state that sucb errors may be reviewed by tbis court upon an appeal from tbe judgment in tbe absence of a motion for a new trial. *Cotton v. Watkins,*6 Wis. 629; *Hayward v. Ormsbee,*11 Wis. 3; *Kirch v. Davies,*55 Wis. 287, 11 N. W. 689; *Anstedt v. Bentley,*61 Wis. 629, 21 N. W. *807; Reed v. Madison,*85 Wis. 667, 56 N. W. 182. A motion for a new trial is only necessary to preserve for review errors committed by tbe jury. Errors committed by tbe court can be reviewed without sucb motion. *Plankinton v. Gorman,*93 Wis. 560, 562, 67 N. W. 1128. Perhaps certain language in *Kopplin v. Quade,*145 Wis. 454, 130 N. W. 511, and *Beebe v. M., St. P. & S. S. M. R. Co.*137 Wis. 269, 118 N. W. 808, justifies a contrary inference. There was no intention on tbe part of tbe court in those cases to disturb tbe long established law on tbe subject, and expressions in those opinions tending to cast doubt upon tbe matter are disapproved.

Certain hypothetical questions were propounded by tbe respondent to expert witnesses in which it was assumed that deceased bad fallen from a car and sustained an injury. Appellant’s counsel objected to these questions, contending that it bad not been proven in tbe case that tbe deceased fell from a car or sustained an injury. We think the. objection was properly overruled. A party has the right to tbe opinion of an expert witness on tbe facts of tbe case as be claims them to be, and be may propound hypothetical questions assuming as proved all facts which tbe evidence in tbe case tends to prove. *Quinn v. Higgins,*63 Wis. 664, 24 N. W. 482. It was tbe plaintiff’s theory that tbe deceased sustained an injury by reason of falling from a box car. Tbe evidence *525introduced by tbe plaintiff, wbicb was before tbe court at tbe time tbe questions were propounded, not only justified sncb conclusion, but, as we have seen, was sufficient to sustain an affirmative finding of tbe jury upon tbat fact. Tbe plaintiff certainly was entitled to tbe opinion of experts based upon tbe assumption tbat sucb fall and injury bad been sustained by tbe deceased.

Certain bypotbetical questions were propounded asking expert witnesses to “state whether or not, in your opinion, bis death was tbe result of tbe fall wbicb I described in my former question.” Objection was made to these questions tbat they were incompetent and constituted an invasion of tbe province of tbe jury. It is a general rule tbat an expert witness should not be permitted to give bis opinion upon tbe ultimate fact to be found by tbe jury. It is also another well settled general rule tbat an expert may give bis opinion upon any question within tbe realm of scientific knowledge. When tbe ultimate fact to be found by tbe jury is a scientific question, these two principles necessarily come into collision and one or tbe other must give way. However, it is unnecessary for us to philosophize upon tbe question as to wbicb should be given tbe right of way. under tbe circumstances, because tbe form of tbe question here under consideration was expressly sanctioned in *Crouse v. C. & N.*W. *R. Co.*102 Wis. 196, 78 N. W. 446, 778.

Error is also assigned because a sister of tbe deceased was permitted to testify tbat be bad expressed bis intention and purpose of remaining single and not marrying. Tbe evidence was admissible. *Bright v. Barnett & Record Co.*88 Wis. 299, 60 N. W. 418.

Counsel for defendant requested tbe court to submit to tlje jury, as a part of tbe special verdict, tbe following question:

> “Was tbe death of Bernard M. Conway caused by any injury'suffered at tbe time of tbe breaking of tbe ladder round, or was it caused by disease ?” Tbe court refused tbe request and submitted instead tbe following question: “Was Con*526way’s death, caused in whole or in part by the injuries so sustained by him?” This is assigned as error.

The question submitted calls for the direct determination of the ultimate fact upon which liability of the defendant is predicated by the federal Safety Appliance Act (36 U. S. Stats, at Large, 298, ch. 160) and the federal Employers’ Liability Act (35 U. S. Stats, at Large, 65, ch. 149), which govern the case. The question suggested could have been answered in but one of three ways: (a) By the injury; (b) by disease; or (c) by both. If the jury were of the opinion that the death of deceased resulted solely from disease, they could not have answered the question submitted as they did. The answer to the question submitted effectively negatives any possibility that by answering the question requested they would have found that the death of the deceased resulted from disease, and any other answer would amount to a finding that his death was due in whole or in part to the injury. There is really very little difference in the ultimate effect of the two questions, but the question submitted calls for a direct finding upon the issue involved and is preferable. Counsel concede in their brief that “possibly the question submitted by the court would have been sufficient if the instructions of the court had covered the question of direct and remote cause, but such instructions were not given.” This court has held that proximate cause has nothing to do with liability under these federal acts *(Calhoun v. G. N. R. Co.*162 Wis. 264, 156 N. W. 198) and an instruction upon that subject would have been out of place. If elucidation of the question submitted was deemed necessary, counsel should have submitted a request upon that subject, which they failed to, do.

Counsel for defendant requested the court to charge the jury, in connection with question 5, that “If you are not satisfied with reasonable certainty that his death was caused by such an injury you should answer question 5 No.” The *527court refused this instruction, but did charge the jury that “If you are satisfied by the preponderance of credible evidence that Conway’s death was caused in whole or in part by injury sustained by a fall as alleged by plaintiff you should answer this question Yes.” The jury was also informed that the burden of proof as to such question wás upon the plaintiff, and in the early part of the charge it was said:

> “When I instruct you that the burden of proof rests upon one party or the other to the action I mean that it is incumbent upon such party to establish the truth of the proposition involved, as he claims it to be, to your satisfaction by the preponderance of the credible evidence in the case.”

Appellant criticises the instruction of the court with reference to this question because the court did not say that the jury should be satisfied *“to a reasonable certainty.”*This phrase is not essential. This court has never held it to be indispensable to a correct charge upon the question of the proper degree of proof that the jury should be satisfied with reasonable certainty or to a reasonable certainty. It was held not to be error to so charge in *Pelitier v.*C., *St.*P., *M. & O. R. Co.*88 Wis. 521, 528, 60 N. W. 250, because, as there said, if the jury was satisfied of a proposition it must be reasonably certain of it. The phrase “with reasonable certainty” is mere surplusage when used in such connection and adds nothing to the statement that the jury should be satisfied of the existence of a fact before it can so find.

The other errors complained of do not seem to merit special treatment. They have all been considered. No reversible error has been found, and the judgment should be affirmed.

*By the Gourt.*— Judgment affirmed.

A motion for a rehearing was' denied, with $25 costs and costs of motion, on June 19, 1918.