#### Zarnik, Respondent, vs. C. Reiss Coal Company, Appellant.

*October 15*

November *5, 1907.*

*Master and servant: Negligence: Personal injuries: Trial: Nonsuit: Directed verdict: Special verdict: Inconsistent findings: Sufficiency of questions submitted: Refusal to submit questions: Assumption of risk: Unavoidable accidents: Instructions to jury: Prejudicial error: Reception of evidence: Expert testimony: Competency.*

*1.*In an action by a servant for personal injuries tbe evidence, stated in tbe opinion, is *held*sufficient to sustain findings for tbe plaintiff, and to sustain tbe denial of defendant’s motions for nonsuit, directed verdict, amendment of tbe verdict, and judgment notwithstanding tbe verdict.

2. In an action by a servant for personal injuries caused by a defective lever fastening tbe door of a coal car, a finding of tbe *291special verdict, on sufficient evidence, that a proper inspection would have revealed the defect in time for defendant to have repaired it or taken the car from the track, is *held*not inconsistent with findings that one of plaintiff’s witnesses had not informed defendant’s foreman, prior to the injury, of the defect in the lever, and that the defendant had no actual notice or knowledge of the defective condition of the lever in time to have repaired it or to have taken the car off the track before the plaintiff was injured.

3. In an action by a servant for personal injuries caused by a defective lever fastening the door of a coal car, the court, as part of a special verdict, submitted questions whether the plaintiff knew or ought to have known of the defect in the lever, and also whether the plaintiff was guilty of any want of ordinary care contributing to the injury. The jury were instructed that assumption of risk was a species of contributory negligence. *Held,*that the questions submitted fully covered the question of assumption of risk, and it was not error to refuse to submit an additional question, whether a person of ordinary care and prudence ought to have anticipated that an accident such as happened to the plaintiff was liable to occur.

4. In such case the court also fully instructed the jury on the subject of unavoidable accidents, and it was *held*no error to refuse to submit, as part of the special verdict, an inquiry whether the injury received by the plaintiff was due to such an accident.

5. In an action for personal injuries to a servant it is *held*that the instructions given did not inform the jury of the effect of their answers to the questions presented in the special verdict.

6. In an action by a servant for personal injuries caused by a defective lever fastening the door of a coal car, it was not error for the court to instruct the. jury that it was the duty of the defendant to make a proper inspection where, as shown by the evidence, the inspection made was quite general, and from it the jury might have found that, if a proper inspection had been made, it would have revealed the defect in the lever.

7. In an action by a servant for personal injuries caused by a defective lever fastening the door of a coal car, the court, in submitting to the jury the question of ordinary care on the part of the plaintiff, instructed them that in answering this question they were to consider, among other things, whether the cause of the opening of the door was or was not an unavoidable accident, and that if such cause was unknown, or could not be definitely ascertained, then so far as the case was concerned they should find it was such an accident. The jury found on sufficient evidence that the lever was defective and that the de*292fendant ought to have known of such, defect in time to have repaired it or taken the car off the track, and in favor of plaintiff on all facts necessary *to*entitle him to recover by reason of such defect. No effort was made by defendant to show that the lever was not defective or that such defect was not the proximate cause of the injury, but it did offer proof of inspection on the day before the injury. The jury were instructed that when a thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. *Helé,*that this instruction, whether applicable to the facts or not, was not prejudicial to defendant.

8. The scope of expert evidence is not restricted to matters of science, art, or skill, but extends *to*any subject in respect to which one may derive by experience special and peculiar knowledge.

9. Opinion evidence may properly be given as to the very point the jury are to decide, when such point is within the field of expert evidence, and the question is based upon undisputed facts or assumed facts warranted by the record.

10.In an action by a servant for personal injuries caused by a defective lever fastening the door of a coal ear, answers to questions: “If the handle is perfectly straight, what effect does that have on the slide?” and “Would a car door be reasonably safely locked if the catches held the latches on the door by half an inch, and the car was subject to the general uses to which it is put in running upon these trestles and making the turns?” are *held*not *to*have invaded the province of the jury, where the witnesses interrogated were machinists of wide experience, had made thorough examination of the car, and understood the relations of all its parts and the principles upon which they worked.

Appeal from a judgment of tbe circuit court for Mani-towoc county: Michael NibwaN, Circuit Judge.

*Affirmed.*

Tbis action was commenced by the plaintiff, who was engaged in the coal yards of the defendant in the city of Mani-towoc, Wisconsin, to recover damages for personal injuries sustained by him on Monday, July 18,1904. At the time of the injury the defendant was engaged in running cars of coal *293over its tracks in its yard upon a trestle some thirty feet above the place where plaintiff was at work, unloading soft coal from the steamer Siberia, and several cars were being operated along the tracks for that purpose. The plaintiff was a laborer and had been working around the coal docks for several years. He was at work on the ground level under the .track where the cars were being operated. There was a cable in constant motion, running from west to east, turning a loop at the end of the dock, and running thence on what was called track Ho. 4, along the south side of the dock, then coming to another loop or curve and turning toward the north until it came upon the straight track running east and called track Ho. 3. The cars are gripped on the cable, and the cable keeps turning around the loops and takes the cars all around the dock and around the curve or loop upon the trestlework. The rails on which the cars run are twenty-seven inches apart. The cars are made to a bevel; that is, the top is wider than the bottom. At each side of the car is a door and at each side of the door are two latches, and there are two hooks at the bottom of the car into which the latches go. There is a grip at the front of the car which grips the cable; also slides back of the car and levers. The slides go underneath the car and the hooks fasten into the slides below. When the slides work, the hooks work on the slides and release the door. There is a plank over the top of the door on which the hinges are placed, and also one hinge from the bottom of the car, through which is a bolt upon which the door swings. The purpose of the catches is to hold the door closed, and do hold it closed when the latch on the car door is in the hook. Underneath the car on each side is what is called a slide. Hooks are placed on this slide and are attached to the lever at the rear of the car. The door opens with the lever at the rear and also with the grip or tripper which is underneath the car. When the slide moves forward the catches move to the back end and thus re*294lease the door. When the slide is moved backward that throws the hooks ahead again and closes the door. Every twelve feet are two planks in which there are holes, also bolts, and when the tripper gets over this block it opens the car— releases the door. The cars are also provided with handles, the purpose of which is to dump the coal in case there are no dump planks. This handle is placed in the back end of the slot of the slide. It fits pretty tight, and is attached to the back of the car by a kind of clamp into which the handle fits with a bolt through it. The handle turns at a point where it connects with the car, and at the point where attached to the car it is bent off on an angle to regulate the slide so that the hook will catch well on the latches. At the time of the injury this handle was bent about one and one-half inches, and the actual bearing of the catches on the latches of the door was not more than about half an inch. The plaintiff was at work at the hard-coal shed at a point just beneath the trestle where the cars turned from track No. 4 to No. 3, and the door of the car, by reason of being improperly locked on account of the defective lever, opened and dumped the coal upon plaintiff, causing the injury complained of.

The jury returned the following verdict:

“(1) Was the falling or dumping of the coal from car No. 14 upon the plaintiff caused by the opening or release of the left-hand door of the car when it was passing above the place where plaintiff was then working ? *A.*(by the court). Tes. (2) At that time, was it the fact that the left handle or lever, which was at the back of the car and was used for dumping the car by hand, was not sufficiently bent at the point where it turns on a pivot so as to allow the slide to which the locks or catches are attached to spring back far enough, for the catches to grasp and hold with reasonable safety the iron projections on the left door of the car? *A.*Tes. (3) Was the car, in the usual operation thereof, subjected to some degree of jarring or straining in passing over the loop or curve in the track above the place where plaintiff was working when injured? *A.*Tes. (4) If your answer to the second *295question be 'Yes,’ then was the defective condition of the lever, which your answer to the second question finds to have then existed, the cause of the opening or release of the left door when the car passed, or soon after it passed, over the loop and onto the trade or trestle No. 3, and was just above the place where plaintiff was working when injured ? *A.*Yes. (5) If your answer to the fourth question be 'Yes,5 then, on the morning of the day on which plaintiff’s injury occurred, and before it occurred, was defendant’s assistant foreman, Adler, informed by defendant’s employee, Julius Biermann, that the lever was defective? *A.*No. (6) If your answer to the fourth question be 'Yes,’ then did defendant, through either of its proper representatives who were charged with the duty of inspecting and keeping the cars in proper condition and repair, have actual notice or knowledge of the defect in the lever in time to have repaired it or to have taken the car off from the track, in the exercise' of ordinary care and diligence and before the plaintiff was injured? *A.*No. (6-)~) If your answer to the sixth question be 'No,’ then if the defendant, through its said representatives, had exercised ordinary care and vigilance in such inspection, would said representatives or either of them have thereby learned of the defect in the lever in time to have repaired it or to have taken the car off'from the track, in the exercise of the aforesaid degree of care and diligence and before plaintiff was injured? *A.*Yes. (7) If your answer to either the sixth question or to question 6-| be 'Yes,’ then was the failure of the defendant, through its said representatives, to repair the defect in the lever, or to remove the car from the track before plaintiff was injured, the proximate cause of his injury? A. Yes. (8) If your answer to the fourth question be 'Yes,’ then (1) did the plaintiff know, or (2) by the exercise of ordinary care on his part would he have learned, of the defective condition of the lever before he was injured? *A.*(1) Plaintiff did not know. (2) By the exercise of ordinary care he would not have so learned. (9) Was plaintiff guilty of any want of ordinary care on his part which contributed to produce his injury? *A.*No. (10) If the court "shall be of the opinion that plaintiff is entitled to judgment in his favor, what sum will reasonably compensate him for his injury ? *A.*$1,350.”’

*296Judgment for plaintiff upon the verdict was entered for the sum of $1,350, together with interest and costs. The defendant appeals and assigns error.

For the appellant there was a brief by *VilaSj Vilas & Freeman,*and oral argument by *F. P. Vilas.*

*E. L. Kelley,*for the respondent.

KeewiN, J.

1. The first contention made by appellant is that the court erred in denying defendant’s motions for non-suit, directed verdict, to amend the verdict, and for judgment notwithstanding the verdict. This argument involves the sufficiency of the evidence to support the findings of the jury. The negligence relied upon was the defective condition of the car, in consequence of which the car door became open at a point before the dumping place was reached and dumped the coal upon the plaintiff. The evidence tends to establish that the lever at the back of the car used for hand dumping did not have sufficient bend so as to admit of proper locking of the door latch of the car, in consequence of which, while the car was running upon the track, the door became open and suffered the load to dump upon plaintiff. There is evidence that a door latched or locked in the manner in which the car door in question was at the time of the injury was defective, dangerous, and liable to come open while the car was running upon the track; that the operation of the car on the track and around the curve or loop, and the strain, jar, and jerks incident to such operation, would cause the door thus improperly latched or fastened to open and dump the coal. The plaintiff produced Mr. Biermann, a witness, who testified that on the morning of the injury and before the car went out he informed the foreman of defendant, Mr. Adler, that the car was defective, and told him that “the hooks don’t catch enough on the door,” and in reply Mr. Adler said: “'She is all right. Let her go.” Mr. Adler denies this, and the jury found in answer to the fifth question that Mr. Bier-*297mann did not inform Mr. Adler that the lever was defective. It is argued by counsel for appellant that this finding negatives any actual knowledge on the part of defendant, and that the jury found the alleged conversation between Bier-mann and Adler never took place, and that by the sixth question the jury found that defendant had no actual notice or knowledge of the defective condition of the lever in time to have repaired it or to have taken the car off the track before the plaintiff was injured. Counsel for defendant, therefore, concludes that because the evidence shows inspection on Saturday before the injury, and because of findings 5 and 6, the answer of the jury to question 6-J, to the effect that the representative of defendant by the exercise of ordinary care and vigilance would have learned of the defect in the lever in time to have repaired it or taken the car from the track, cannot be sustained, and hence the answer to question 6|: should have been changed. We cannot agree with counsel in this contention. The answers to the fifth and sixth questions merely find that Biermann did not inform Adler of the defect in the lever. It does not appear that Biermann testified that he informed Adler that the lever was defective. He testified that he told him that he did not think the car was all right, and, on being asked why, said, “The hooks don’t catch enough on the door.” The jury found that Biermann did not inform Adler that the lever was defective, and this was strictly correct under Biermann’s evidence. He simply informed Adler that he thought the car was not all right because the hooks did not catch enough on the door. Now, it is very clear from all the evidence that the jury would be warranted in finding that a proper inspection would have revealed the defect in the lever, to say nothing of the evidence of Biermann, which the jury by their findings did not necessarily discredit. So we think the position of counsel for appellant that the verdict is inconsistent as it stands, and that *298the answer to question 6i is no-t supported by the evidence and should be changed, is not well taken.

2. Error is assigned in the submission of questions 8 and 9 to the jury and refusal to submit the following:

> “Under all the evidence in the case, and in view of the knowledge of the plaintiff of the manner and method of conducting the work of the defendant upon the dock where he was engaged when injured, ought a person of ordinary care ■and prudence to have anticipated that an accident such as happened to the plaintiff was liable to occur ?”■

It seems to us that questions 8 and 9 presented fairly the questions involved to the jury and more clearly than the request of defendant. They appear to have been answered intelligently by the jury, and we find no error in their submission nor in the refusal to submit the one requested by defendant.

The main contention of defendant under this head is that the question of assumption of risk was not fairly submitted to the jury. The question whether plaintiff knew or ought to have known o.f the defect in the lever was submitted to the jury in the eighth question, and whether he was guilty of any want of ordinary care contributing to the injury was submitted in the ninth question. These questions fully covered the assumption of risk, and the jury were charged that assumption of risk was a species of contributory negligence. It is also contended that the court should have submitted the question asked by defendant, namely, “Was the injury received by the plaintiff due to an unavoidable accident?” The jury were fully instructed upon this question, and no error was committed in refusing to submit it as a part of the special verdict. *Hennesey v. C. & N. W. R. Co.*99 Wis. 109, 14 N. W. 554; *Johnson v. St. P. & W. C. Co.*126 Wis. 492, 105 N. W. 1048.

8. A very vigorous attack is made upon the charge of the court by counsel for defendant. It is claimed in the first *299place tbat tbe court informed tbe jury of tbe effect of their answers to the questions presented in tbe special verdict.. After a careful examination of tbe charge we cannot find tbat any reversible error was committed in tbis regard, and after-all tbat bas been said upon tbis subject by tbis court further discussion would seem unnecessary. We call attention to *Banderob) v. Wis. Cent. R. Co., ante,*p. 249, 113 N. W. 738, where the authorities are collected and discussed. Tbe charge-is also criticised because the court told tbe jury tbat it was the duty of defendant to make a proper inspection, on tbe ground tbat there was no evidence tbat tbe inspection was not proper,, and counsel in bis argument assumes tbat there was no question for tbe jury on tbis point. But in tbis we think counsel is in error. The. inspection, as shown by tbe evidence, was-quite general, and from it tbe jury might well'have found tbat, if a proper inspection bad been made, such inspection would have revealed tbe defect in tbe lever, if one in fact existed. Tbe question whether or not proper inspection bad been made, upon tbe evidence, was for tbe jury, and there was-no error in tbe charge in that respect. Tbe most serious question to our minds under tbis bead is whether tbe court erred in that portion of tbe charge taken from tbe rule laid down in-*Cummings v. Nat. F. Co.*60 Wis. 603, 612, 18 N. W. 745, 20 N. W. 665, tbat “when tbe thing is shown to be under tbe management of tbe defendant or bis servants, and tbe accident is such as, in tbe ordinary course of things, does not happen if those who have tbe management use proper care,, it affords reasonable evidence, in the absence of explanation-by tbe defendant, that tbe accident arose from want of care.”' Whether tbis instruction was applicable to tbe facts in this-case we shall not stop to consider, since we are convinced that, it worked no prejudice to tbe defendant. In tbe first place it. was given under tbe ninth question of tbe special verdict, respecting want of ordinary care on the part of the plaintiff, and tbe jury were told tbat in answering tbis question they

*300were to consider, among other things, whether the cause of the opening of the door was or was not an unavoidable accident, and that if such cause was unknown, or could not be definitely ascertained and determined, then so far as this case was concerned they should find that it was an unavoidable accident; but if they were satisfied that the door opened because of the defect in the lever, if such defect existed, then the cause is known and the accident did not result from an unknown cause. The court then gave the instruction from the *Cummings*Case, 60 Wis. 603, 612, 18 N. W. 142, 20 N. W. 665, above quoted, and followed it by the further instruction :

> “I read that to you as assisting you in determining the law ■applicable to the question whether this opening of the door was or was not an unavoidable accident — whether it arose from an unknown cause or from a cause that can be traced and determined.”

The jury found upon sufficient evidence that the lever was defective, and that defendant ought to have known of such defect in time to have repaired it or taken the car off the track, and found in favor of plaintiff all facts necessary to entitle him to recover by reason of such defect. The defect which caused the injury was left in no uncertainty by the verdict, but was traced to a known cause. No effort was made by defendant to show that the lever was not defective or that such defect was not the proximate cause of the injury. The defendant did offer proof of inspection on the Saturday before the injury, but it is obvious that the jury found that the defect existed and proper inspection had not been made, else the defect would have been discovered before the car was put on the track. So the instruction under consideration, whether applicable to the facts of the ease or not, was not prejudicial, and therefore not reversible error.

4. Error is assigned because of the reception and rejection of evidence. The main contention under this head is *301that expert testimony was improperly admitted. The expert was ashed the following questions: “If the handle is perfectly straight, what effect does that have on the slide?” Also the following: “Would a ear door be reasonably safely locked if the catches held the latches on the door by half an inch, and the ear was subject to the general uses to which it is put in running upon these trestles and making this turn ?” Other questions of similar import were asked. The witness was permitted to answer these questions over defendant’s objections. It is urged by counsel for defendant that it was error to allow such answers, on the ground that they invaded the province of the jury; and *Hamann v. Milwaukee B.*Co. 127 Wis. 550, 106 N. W. 1081; *Olwell v. Skobis,*126 Wis. 308, 105 N. W. 777, and *Anderson v. Chicago B. Co.*127 Wis. 273, 106 N. W. 1077, are relied upon. The question turns on whether or not the evidence offered comes within the field of expert evidence. The scope of expert evidence is not restricted to matters of science, art, or skill, but extends to any subject in respect to which one may derive by experience special and peculiar knowledge. *Hamann v. Milwaukee B. Co., supra.*“Opinion evidence may properly be given as to the very point the jury are to decide,” when such point is within the field of expert evidence, when the questions are based upon undisputed facts or assumed facts warranted by the record. *Maitland v. Gilbert P. Co.*97 Wis. 476, 72 N. W. 1124; *Lyon v. Grand Rapids,*121 Wis. 609, 99 N. W. 311. We think this rule was not violated by the admission of the evidence under consideration. *Cole v. Clarke,*3 Wis. 323; *Daly v. Milwaukee,*103 Wis. 588, 79 N. W. 752; *Stanwick v. Butler-Ryan Co.*93 Wis. 430, 67 N. W., 723*Northern S. Co. v. Wangard,*123 Wis. 1, 100 N. W. 1066; *Ollwell v. Skobis,*126 Wis. 308, 105 N. W. 777; *Schwantes v. State,*127 Wis. 160, 106 N. W. 237; *Hamann ¶. Milwaukee B. Co.*127 Wis. 550, 106 N. W. 1081. The witnesses interrogated on the subject were machinists of wide expe*302rience. They bad made thorough examination of the ear and understood the relations of all the parts and the principles upon which they worked. It is quite clear that the jury could not judge as well as these experts respecting the safety of the defective lever, or whether a half-inch bearing of the catch was a sufficient locking.

We find no reversible error in the record.

*By the Gourt.*— The judgment below is affirmed.