#### Cooper, Administrator, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*January 14*

February *3, 1914.*

*Appeal: Review of evidence: Motion for new trial after judgment: General verdict: Several grounds of liability: Presumption on appeal: Circumstantial evidence: Sufficiency: Proximate cause: Railroads: Defective crossing: Injury: Husband and wife: Damages.*

1. Where a motion for a new trial is made promptly and in ignorance of the fact that judgment has been entered on the verdict, and the circuit court treats the motion as one made before judgment, and the opposing counsel acquiesce by accepting the advantages of the order made, an exception will be made to the rule that where the motion for a new trial was made after judgment the sufficiency of the evidence to support the verdict will not be considered on appeal from the judgment.

2. Where the evidence tends to establish several grounds- of liability, all growing out of the same transaction, which are submitted to the jury for a general verdict, there is no error in the fact that it is impossible to tell upon which ground the verdict is based; and the presumption after judgment is that all the jurors agreed upon some one or all of the several grounds.

3. If in such case there was no request for a special verdict nor for proper instructions which would have eliminated any alleged ground of liability which was insufficiently supported by evidence, the verdict will be deemed to rest upon those grounds of liability which are supported.

4. There must be a basis of fact for countervailing hypotheses before they can be brought forward to weaken or destroy the effect of circumstantial evidence.

5. Where a child fell between the rails at the crossing of a railway track and a sidewalk, evidence of a defective condition of the crossing efficient to cause such a fall would warrant an inference that the fall was caused by such condition; and where a woman attempted to rescue the child and succeeded in throwing it from the track, but in so doing fell in front Of an approaching train and was injured, the same considerations would justify a finding that the defective condition of the crossing was the proximate cause of the injury.

*6156. In an action by a husband to recover for loss of services and for expenses, etc., caused by an injury to his wife, who was struck by a railway train, an award of $467 (reduced by the trial court from $1,067) is *held*not excessive.

Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevests, Circuit Judge.

*Affirmed.*

The respondent David J. Marshall died this appeal pending, and *Frank*Cooper, his administrator, is substituted as respondent. David J. Marshall brought this action to recover for the loss of services of his wife and the reasonable value of his own services in caring for and nursing her, doctors’ bill and hospital expenses, etc. The learned circuit judge instructed the jury at the close of the evidence that the plaintiff based his right to recover upon three alleged grounds of negligence:- (1) that the train was running faster than twenty miles per hour while it was within twenty rods of the crossing in question; (2) that the engineer in charge of the train was guilty of negligence in operating the train, in that he did not have it under control as he approached the crossing, and that he was negligent upon the further ground that he had 'so used the air brake that it was practically exhausted, rendering the emergency brake of no use in attempting to stop the train; and (3) the defendant did not exercise ordinary care in constructing and maintaining the crosswalk where Mrs. Marshall was injured, in that the crossing walk had become old, warped, and decayed so that it was inefficient for public travel. The jury was further instructed that “if the plaintiff has satisfied you, by a preponderance of the evidence, of the existence of any one or more of the three grounds of negligence alleged, then you will have to consider the further question of whether the grounds of negligence found by you are the proximate cause of the injuries sustained by Mrs. Marshall.” Proximate cause was then defined and further instructions given. The iury returned a general verdict in favor of the plaintiff and *616against tbe defendant for $1,067 damages, wbicb was on February 26, 1913, by order of tbe court, reduced to $467. Counsel for defendant requested tbe court to instruct tbe jury as follows: “There is no sufficient evidence in tbe case from wbicb you can find that any defect in tbe crossing or tbe planking, or any condition thereof, was the cause of or contributed to tbe accident in question.” This instruction was refused, and to' such refusal tbe defendant excepted. On the coming in of tbe verdict and before any motion for a new trial, on December 14, 1912, judgment was by tbe clerk entered in favor of tbe plaintiff and against tbe defendant on this verdict in tbe sum of $1,067. On December 30, 1912, defendant’s motion for a new trial was filed, apparently in ignorance of tbe fact that said judgment bad been entered. Tbe motion for a new trial was entertained and considered and on February 4, 1913, an order was made granting a new trial on tbe ground of excessive damages unless tbe plaintiff should consent to reduction of tbe verdict' to $467. Tbe plaintiff did so consent, and tbe judgment was corrected to comply with tbe order of tbe court' and said consent, and tbe clerk on February 26, 1913, made an entry at tbe foot of tbe judgment' to tbe effect that tbe judgment was reduced to $467 by order of tbe court dated February 24, 1913.

*Edward M. Smart,*for tbe appellant.

For tbe respondent there was a brief by *Qrdtophorst, Evans <&*Thomas, and oral argument by *Evan A. Evans.*

Timlin, J.

Tbe foregoing statement of facts seems to be sufficient to present all tbe questions properly before us on this appeal.

(1) Tbe respondent, relying upon *International T. R. Co. v. Samer,*151 Wis. 570, 139 N. W. 315; *Kozik v. Czapiewski,*136 Wis. 70, 116 N. W. 640, and other cases in this court, contends that upon appeal from a judgment', as *617here, tbis court cannot consider tbe sufficiency of tbe evidence to support tbe verdict where tbe motion' for a new trial is made after judgment, and that in sucb ease tbe question should be presented by appeal from tbe order denying a new trial. In a case like tbis where tbe motion for a new trial was made promptly and in apparent ignorance of tbe 'fact that judgment bad been entered on tbe verdict, and tbe circuit court treats tbe motion as one made before judgment and counsel opposed acquiesce by accepting tbe advantages of tbe order made, there is room for a distinct' .exception to that rule, which is hereby recognized, and tbe appeal will be considered on its merits.

(2) Appellant contends that it' is impossible to tell whether tbe jury’s verdict for tbe plaintiff rests upon tbe first, second, or third ground of negligence of tbe defendant mentioned above and submitted to tbe jury. Erom tbis be argues that tbe verdict may rest upon the insufficiency or defective condition of tbe crosswalk, affirming its insufficiency and its causal relation- to tbe injuries in question. Then going back to the evidence be affirms that there is no evidence showing that tbis insufficiency of the crosswalk, if it existed, was tbe proximate cause of tbe injuries in question, and therefore it was error t'o refuse tbe requested instruction above quoted.

Where there is competent evidence tending to establish several grounds of liability, all growing out of tbe same transaction, which are submitted to the jury, and tbe latter respond thereunto by general verdict, there is nothing unusual or erroneous in tbe fact that it is impossible to tell upon which of these grounds tbe jury found in favor of tbe prevailing party. 12 Cyc. 693 and cases in note 26; *Nelson v. State,*52 Wis. 534, 9 N. W. 388; *Grottkau v. State,*70 Wis. 462, 36 N. W. 31; *Nye v. Otis,*8 Mass. 122, 5 Am. Dec. 79. Civil cases have been tried and submitted in tbis manner from tbe earliest times, and tbe only doubt appears *618to have been. with, reference to criminal trials, in wbicb tbe foregoing rule was finally established. The presumption after judgment is that the jury all agreed upon some one or all of the several grounds of recovery and no error on the part of the jury appears. If a party ’ litigant desires to know in such case upon what grounds of fact the verdict is based he must call for a special verdict. But a party may insist upon proper instructions as to each count of the complaint or as to each ground of liability claimed, and thus eliminate any alleged ground of liability which is insufficiently or inadequately presented by the evidence. If there is no special verdict’ requested and no proper instructions requested, and the evidence malíes a case for the jury upon each of the alleged grounds of liability, the question of which ground the jury found against the1 losing party upon, becomes one of mere academic interest and immaterial in the practical investigations of the law, and if in such case one of the grounds of liability alleged is insufficiently supported by evidence, the verdict will be referred to those grounds of liability which are supported.

There was evidence from which the jury might have found that the planking between the rails of defendant’s track, forming part of the sidewalk in question, was defective. There was a space or opening between the inside of the south rail and the next adjacent plank. The third plank was shorter at one end and did not lie up close to the fourth plañir, and the fourth plank was warped and curled up in such a way that a traveler on the sidewalk might trip against the upraised edge and fall. The jury viewed the crossing, and photographs thereof are in the bill ofexceptions. There was also evidence from which the jury might have found that a group of four, consisting of three adult women and a five-year-old child, were traveling on this sidewalk, two women ahead, and about six feet behind them Mrs. Potter *619and the child. On this defective crossing, midway between the rails, the child suddenly fell. The train was approaching rapidly, Mrs. Marshall threw the child off the track and saved its life, but in doing so fell in front' of the advancing train. The two women ahead, when the child fell, at once turned back, apparently to save it, and all three women were struck by the train, two of them killed and Mrs. Marshall injured, but the child saved. No express testimony states what caused the child or Mrs. Potter to fall. It is suggested that the child might have been carrying a parasol and that' the point of it went down between the plank. There is no positive testimony that the child was carrying a parasol, but a child’s parasol was found near or upon the crossing after the accident. Another suggestion is that the child might have stepped on its mother’s dress and> so tripped and fell, this fall causing the mother to fall. But at the time the child fell it was walking alongside of Mrs. Potter, and if the latter was wearing the ordinary street dress this would not' be probable. There must be a basis of fact for countervailing hypotheses before they can be brought forward to weaken or destroy the effect of circumstantial evidence. U. *S. v.*Ross, 92 U. S. 281, 282.

It seems somewhat significant' that the child was thrown off the track and out of danger before the train struck the remainder of the group. So that with reference to the cause of the fall we have a question of circumstantial evidence. The fall of the child is proven to have occurred at this particular place. A condition efficient to cause such fall is shown to have existed at this place. No other reasonable hypothesis based on facts in evidence is advanced to account for the fall. There is therefore evidence from which the jury was authorized to infer that the fall was caused by the defective condition of the crossing and justified' the rejection of the absolute direction embodied in defendant’s re*620quest-for instruction. *Thompson v. Johnston Bros. Co.*86 Wis. 576, 57 N. W. 298; *Hoye v. C. & N. W. R. Co.*62 Wis. 666, 23 N. W. 14; *S. C.*67 Wis. 1, 29 N. W. 646.

The same considerations, weakened somewhat by the possibility that Mrs. Marshall might have fallen from fright or excitement' in her desperate effort to save the life of the child, and strengthened somewhat by the fact of the fall of the child (if the jury found such fall caused as aforesaid) and her exertions in rescuing the child from imminent and impending danger, accounted for her presence on the track at the critical moment and supplied the premises for a finding of proximate cause. This does not sink to a mere matter of conjecture, it is a weighing of probabilities based upon inferences of fact from other relevant facts properly in evidence.

(3) We do not consider the amount of the verdict as reduced by the learned circuit judge excessive. This last' is a question of fact and has support in the evidence and has the weight of the decision of the court below in its favor.

*By the Court.*— Judgment affirmed.