#### Schendel, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*November 15*

December *5, 1911.*

*Railroads: Injury to braheman: Contributory negligence: Comparison of negligence: Special verdict: Form and sufficiency: Changing answers.*

1. A brakeman on a freight train stalled in snow drifts who, after being sent back to signal a following train, -violated a rule of the company by returning without being recalled and before the other train arrived, is *held,*upon the undisputed evidence in this case, to have been guilty of negligence contributing to an injury sustained by him when the engine of the other train ran into the rear end of his train; and a finding by the jury that he was not negligent was properly changed by the court.

2. The jury in such case found (1) that defendant railway company was negligent, (2) that plaintiff was not negligent, and (3) that defendant’s negligence was greater than that of the plaintiff and contributed in a greater degree to his injury. *Held,*that no proper comparison between the negligence of defendant and that of plaintiff was made by the jury in the exercise of judgment, as contemplated by sec. 1816, Stats. (Laws of 1907, ch. 254).

3. Under said statute the jury should not be required by the form of the special verdict to pass upon the questions whether or not defendant’s negligence was greater than that of plaintiff and contributed in a greater degree to the injury, except when they find that both parties were negligent.

4. The evidence being such that the questions whether or not defendant’s negligence was greater than that of plaintiff and contributed in a greater degree to the injury could not be answered as matter of law, the court, after changing the verdict and finding plaintiff guilty of negligence, should have submitted those questions to the jury or, if the jury had then been discharged, should have granted a new trial. Sec. 2858m, Stats. (Laws of 1907, ch. 346), does not apply to such a situation.

5. Special verdicts should be so framed that no matter what responsive answer is returned to any question a judgment in favor of one party or the other can be based upon the verdict as returned.

Marshall, J., dissents.

*442Appeal from a judgment of the circuit court for Milwaukee county: OeReít T. Williams, Circuit Judge.

*Reversed.*

This action was brought by plaintiff to recover damages fof personal injuries caused by a rear-end collision on defendant’s railroad. The evidence disclosed the following facts: February 5, 1908, freight train No. 282 left Allis station, Milwaukee, where it was made up, at 1:50 a. m., bound for Chicago. It was composed of eighteen or twenty freight cars, an engine, and a caboose, and was in charge of an engineer, fireman, conductor, and two brakemen. On that morning there was a snow storm, at times it rained, a strong wind was blowing, the ground was covered with sleet and snow, and, in some places along the track, there was an accumulation of drifting snow heavy enough to obstruct the passage of trains. When the train reached a point about two and one-half miles south of what is known as Rawson státion, at about 3 o’clock a. m., it was stalled owing to heavy snow drifts. The engineer thereupon disconnected the engine from the train, and, accompanied by the fireman and conductor, proceeded onward about six or seven miles further south to a place known as Willow, for the purpose of sending a message to the train dispatcher. Before leaving for Willow the conductor instructed the plaintiff, who was the rear brakeman, not to let freight train No. 286, coming from the north, collide with No. 282. Thereupon the plaintiff, according to his own testimony, took with him two lanterns, one white and one red, a fusee, and three or four torpedoes, walked about five or six hundred feet north of the caboose, lighted the fusee, and dropped it on the track to warn the approaching train No. 286. He then continued further north to a point ahont three quarters of a mile from the caboose and waited there about half an hour. As train No. 286 did not arrive, and as his lanterns were becoming dim, he placed a torpedo on the right-hand rail of the track and returned to the caboose to see what was the matter with his lanterns. *443There be met Hall, the bead brakeman, wbo informed him that their engine was uncotipled and that the engineer, conductor, and fireman had gone to Willow. Whereupon the plaintiff, in company with Hall, who carried a white light, again walked north to warn train No. 286, and for that purpose took with him his lanterns, fusees, and torpedoes. When they were about five or six hundred feet north of the caboose they dropped a lighted fusee, and then proceeded to the point where plaintiff previously left the torpedo. When they reached that point plaintiff claims his lanterns went out. They lig-hted a fusee, picked up the torpedo, walked still further north, placed on the track five fusees that had been telescoped one into the other so they would burn about fifty minutes, lighted them, set a double torpedo on the right-hand rail, and then they both returned to the caboose. Plaintiff testified that he returned for the purpose of relighting his lanterns. Hall’s testimony was that there was nothing the matter with plaintiff’s lanterns at any time so far as he could observe. About two or three minutes after their return, which was about 6 o’clock a. m., the engine of freight train No. 286 came on from the north, struck the rear end of the caboose, and plaintiff was injured.

■ Freight train No. 286 left West Allis at about 4 o’clock a. m., or about two hours later than No. 282. It proceeded as far as one mile south of Eawson station, where it was stalled because of the large snow drifts. The engineer then uncoupled the engine from the train and headed south to clear the road. When his engine struck the rear end of No. 282 its speed was from eight to ten miles an hour. The defendant maintained Hall block signals fifteen feet above the ground along the east side of the track in question. When No. 282 occupied the track it engaged two signals which warned the approaching trains from the rear of that fact: one known as the distance or caution signal, which was a warning to the engineer to slow up his engine and proceed *444with, such caution that, when approaching the second signal, which was called the home or danger signal and was about 3,960 feet from the caution signal, he could bring his engine to a complete stop. There was evidence to show that in clear weather the caution signal would be visible to an engineer three quarters of a mile away, and the last point from where either the caution or danger signal could be seen by one in a moving engine was about 132 feet from the signal, because from that point onward the engine obstructed the view. No. 282, when it was struck by No. 286, was standing about six or eight car lengths beyond the danger signal. On the rear end of the caboose of No. 282'there were displayed four lights, two red lights on each side thereof, one red light on top, and one white light, called an indicator, was placed in the cupola in the window, showing the number of the train.

Among the rules of the defendant company for the operation of its trains there was one which imposed the duty upon an engineer to stop his engine when passing a caution or danger signal without seeing it. Another imposed the duty upon a rear brakeman, in case of stoppage between stations, to go back for a distance of about three quarters of a mile from the rear of the stopping train, for the purpose of signaling an approaching train, and remain at such point until the train arrived or until he was recalled.

At the close of the evidence the court submitted to the jury the following special verdict:

“(1) While employed as rear brakeman, and in the caboose of train No. 282, which was standing on defendant’s main track south of Rawson on the morning of February 5, 1908, was the plaintiff injured by a locomotive from train No. 286 being run into the rear end of said caboose while it was being operated by defendant’s engineer? *A.*(by the court by consent of counsel). Yes.

“(2) Was the defendant company guilty of negligence directly contributing to plaintiff’s said injury? *A.*Yes. .

“(3) If you answer the second question in the affirmative, *445was tbe plaintiff guilty of any negligence which directly contributed to his said injury ? *A.*No.

“(4) If you answer the last preceding question in the affirmative, then was the negligence of the plaintiff when so injured ‘slighter’ or ‘greater’ as a contributing cause tó his injury than any negligence attributable to the company at the same time? *A.*-■.

“(5) If you answer the second question ‘Yes,’ then answer this question: Was the negligence attributable to the company greater than the negligence of the plaintiff ? *A.*Yes.

“(6) If you answer the last preceding question ‘No,’ then you need not answer this question, otherwise answer this question: Did such greater negligence attributable to the company contribute in a greater degree to the plaintiff’s said injury than the negligence of the plaintiff ? *A.*Yes.

“(7) Was the plaintiff guilty of any negligence which contributed to his said injury ? *A.*No. ~

“(8) If you answer the second question ‘Yes,’ then answer this question: Was the negligence of the defendant company the proximate cause of the plaintiff’s injury ? *A.*Yes.

“(9) Was the plaintiff at the time of his said injury engaged in the line of his duty as rear brakeman of said train ? *A.*Yes.

“(10) If. the court should be of the opinion that the plaintiff is entitled to recover judgment against the defendant, at what sum do you assess the plaintiff’s compensatory damages ? *A.*$10,000.”

The court on its own motion changed the answers of the jury to questions 3 and 7 -of the special verdict from No to Yes. The usual motions were made by the defendant and were denied, and the court entered judgment on the special verdict for the plaintiff, from which the defendant appealed.

*'William, G.*Wheeler, for the appellant, cited *Dohr v. Wis. Gent. It. Go.*144 Wis. 545, 129 N. W. 252, and *Vollmer v. Fairbanks,*146 Wis. 630, 132 N. W. 542.

Eor the respondent there was a brief by *Rubin & Lehr,*attorneys, and *W. B.*Rubin> of counsel, and oral argument by *W. jB. Rubin.*

*446Vinje, J.

Tie main evidence relating to the negligence of the plaintiff and the-defendant is set ont in the foregoing statement of facts. As the case must he remanded for a new trial, we purposely forbear to comment upon it further than to say that the trial court properly changed the answer to question 3 from No to Yes, and that the questions whether or not the defendant’s negligence was greater than that of plaintiff and contributed in a greater degree to the injury cannot he answered as a matter of law by the court. Question number 7 was superfluous. Question number 2 related to defendant’s negligence, and question number 3 to that of the plaintiff. Had the trial court followed the statute (sec. 1816, Stats.: Laws of 1907, ch. 254) and submitted the question, first, If your answers to questions 2 and 3 are Yes, then was the negligence of the defendant greater than the negligence of the plaintiff ? and, second, If your answers to questions 2 and 3 are Yes, then was the negligence of the defendant greater as a contributing cause to the injury than that of the plaintiff ? instead of requiring the jury to answer-questions 4, 5, and 6 contingent upon their answering only one question in a certain way, we should not have had the unfortunate situation that now confronts us. *Jensen v. Wis. Cent. R. Co.*145 Wis. 326, 128 N. W. 982. As the verdict was framed, the jury were obliged to compare the negligence of the defendant with that of the plaintiff even though they found the latter was guilty of no negligence at all. The fifth question required them to do that, and they did. Can such a comparison be said to be a comparison of negligence in any judicial sense? A comparison of negligence within the contemplation of law implies the exercise of judgment,, and hence room for its exercise; that is, it must relate to conditions where there is at least some necessity for the weighing of facts and the application of the reasoning faculties of the mind to the subject matter of comparison. It does not mean the mere supplying of a fixed mathematical answer. True, *447a comparison of something with nothing may technically be said to be a comparison. Ent the result is certain and absolute. It does not need the exercise of judgment or the weighing of evidence to determine it. When it is ascertained that one of the quantities to be compared is a plus quantity and the other is zero, mathematical laws irrevocably fix the result of the comparison, and no jury can vary it. The axiom that something is greater than nothing needs no confirmation by a jury and is subject to no change at their hands.

But if it be conceded that the jury did make a comparison, it is evident the comparison was not made upon a right basis. The jury made it upon the basis that the plaintiff was free from negligence. The court properly said he was not, and the jury never made a comparison upon that basis — the only correct basis upon which it could be made. Nor can it logically be argued that the jury compared the conduct of the plaintiff with that of the defendant, and found the latter to constitute the greater negligence. Such an argument assumes that a comparison was necessary and possible of execution in an impartial manner. We can indulge in no presumption that the jury did a useless and meaningless thing, or that they did anything more than the verdict submitted to them and the instructions of the court required, or more than existing conditions permitted. Having found negligence on the part of the company and no negligence on the part of the plaintiff, it required no comparison of conduct or negligence to answer the question, “Was the negligence attributable to the company greater than the negligence of the plaintiff?” Their previous findings rendered such comparison useless, absurd, and one-sided only. How could they have returned a negative answer to the question without convicting themselves of the absurdity of saying that nothing was greater than something? The fact that it was impossible consistently to answer the question in the negative shows conclu*448sively tRat no comparison such as the law contemplates was made. TRe only rational answer tRat conld Re returned to tRe question, in view of tRe findings of tRe jury, was an affirmative one. Hence to say tRat a comparison of eitRer negligence or conduct was made, wRen tRe conditions under wRicR it occurred plainly admitted of only one rational answer, is equivalent to saying tRat no comparison was in fact made.

It may Re suggested tRat tRese distinctions are tecRnical and tRat it is a refinement upon language to make *them.*But we think not. After tRe court Rad cRanged tRe answer to question 3 from No to Yes, tRe only controverted questions toucRing tRe liaRility of tRe defendant were wRetRer or not its negligence was greater tkan tRat of plaintiff and contributed in a greater degree to Ris injury. TRe rigkt to Rave tRese questions determined Ry tRe jury, wken tkey could not Re answered as a matter of law by tRe court, was a substantial rigkt of wkick neitker party skould be deprived. Nor should eitRer party be debarred from tRe right to Rave suck comparison made under conditions rendering a finding in Ris favor possible. TRe statute expressly recognizes the right of the jury to pass upon these questions by providing that in all cases under it the question of negligence and contributory negligence shall be for the jury, though such provision is only declaratory of the law that would otherwise govern. In every action properly triable by a jury, disputed questions of fact, that cannot be decided by the court as matter of law upon the evidence as it stands, must be found by the jury unless there is a waiver of the right to Rave them so found. TRe court, therefore, after finding the plaintiff guilty of contributory negligence, should Rave submitted to the jury the questions of comparative negligence and comparative contributing cause, if the jury Rad not then been discharged. If it Rad, a new trial should Rave been granted.

Sec. *2858m,*Stats. (Laws of 1901, ch. 346), does not *449apply to the situation before us. Tbe verdict as submitted by tbe court called for a comparison of negligence and contributing cause, and if tbe jury bad found plaintiff negligent a valid comparison would have been made. Uo controverted matter of fact was omitted from tbe verdict. As submitted, neither party could be held to bave waived a finding by tbe jury on tbe questions of comparative negligence and contributing cause. Tbe defect in tbe verdict became apparent when tbe jury, contrary to tbe undisputed evidence, absolved plaintiff from negligence, and yet were required by question 5 to compare plaintiff’s negligence with that of the defendant. Special verdicts should be so drawn that, no matter what responsive answer is returned to any question, a judgment in favor of one party or tbe other can be based upon tbe verdict as returned.

Three additional errors relating to instructions and tbe refusal to submit certain questions are assigned by tbe defendant. They are not well taken, and are of such minor importance that we do not deem it necessary to discuss them.

*By the Court.*— Judgment reversed, and cause remanded for a new trial.

Tbe following opinion was filed December 18, 1911:

Maeshaul, J.

(dissenting). I regret that I am compelled to dissent from tbe conclusion reached in this case. Doubtless in one period of our judicial history, — an intermediate one, I think, between tbe original establishment and vindication of tbe Code designed to create a new, more economical, speedy, and certain attainment of justice than formerly ; one that should deal with substantials only, giving no heed to technicalities, and tbe revival thereof which has been so significant, — the refinement of logic by which fatal error has been found in' tbe record, would, have tbe east of undoubted legitimacy. But tested by tbe policy so often de-*450dared and so often vindicated, wbicb was intended to be-firmly entrenched in our system by sec. 2829, Stats. (1898),. and which the legislature in recent years helpfully assisted the court from a supposed irregular observance thereof, it. seems there is danger of the present case being regarded as a lapse from the high standard of revived appreciation of the-necessity for and real beneficence of adhering strictly to the policy that only errors shall be regarded efficient which are-so significant as, within reasonable probability, to have prejudiced the losing party, in that had they not occurred a more-favorable result to him, within such probability, would have been reached.

I must, in passing, personally acquit my associates from any purpose of a reactionary nature. They regard the error, so called, which dominated the result, as substantial; not so-much, as I understand it, because had it not occurred, the result would, within reasonable probabilities, have been different, but because the written law requires the jury, in such a case, to directly and specifically pass upon the question of' comparative negligence,- — -that, therefore, such must be done where there is room in the evidence for conflicting reasonable-inferences in respect to the matter.

Now I think my brethren have given altogether too much force to the legislative enactment, in terms requiring the question of comparative negligence to .be submitted to the jury. The conclusion was early easily reached that the legislature-did not intend that should be submitted where the evidence- and reasonable inferences from conceded or found facts are-so clearly one way as to leave no reasonably disputed question for the jury to deal with. *Kiley v. C., M. & St. P. R. Co.*138 Wis. 215, 119 N. W. 309, 120 N. W. 756; *Zeratsky v. C., M.*& *St. P. R. Co.*141 Wis. 423, 123 N. W. 904. That was stepping aside from the literal meaning of words, butsuch meaning would have required the legislative effort on the subject to be condemned as an unconstitutional invasion *451of judicial authority. By tbe same helpful judicial method we should reject auy meaning which is contrary to the whole scheme voiced so significantly in sec. 2829 and emphasized by the legislature, even since the passage of the comparative negligence law and regarded now as a crowning merit of the Code.

The legislature did not mean, absolutely, that the question of comparative fault should be answered by the jury. It meant that it should be answered, if necessary, in harmony with the whole scheme of the Code. The statute is largely one of practice which, notwithstanding the mandatory form, is only so as regards those matters which are within the jury’s province and as to substantials. Otherwise it is a mere practice provision which, at the best, is more advisory than mandatory and, in any event, is largely within the control of courts as indicated by the analysis of the law in *Jensen v. Wis. Cent. R. Co.*145 Wis. 326, 128 N. W. 982. The court is never bound absolutely by any practice act, though, of course, with that respect which is due to legislative wisdom it conforms to its notions even in that field, unless manifestly unreasonable.

Now in harmony with what was said for the court in *Jensen v. Wis. Gent. R. Co., supra,*the comparative negligence law should be administered in its spirit, rather than in its letter, otherwise what was intended to be a beneficial change in our system might prove to be the very reverse. The law should be regarded as requiring certain subject matters of fact to be submitted to a jury for determination, where there are conflicts of such significance as to require it according to established!practice; errors in that regard which are inconsequential to be disregarded. One of such subjects is the alleged wrongful conduct of the plaintiff and its proximate relation to the injury; another the alleged contributory fault of the plaintiff, if any; a third, in case of there being any such fault, its proximate relation to the injury; and a fourth, in case of there being mutual proximate fault, whether that *452of the defendant was tRe greater. Here all of such subjects were suRmitted. TRe jury, in effect, found tRat tRe fault ■of tRe defendant proximately causing tRe injury was tRe sole proximate cause tRereof, and, necessarily, greater tRan any ■sucR fault on tRe part of plaintiff, because tRere was no sucR fault.

I must Re excused for saying tRat I am unable to appreciate tRe refinement of logic by wRicR it is said tRe jury made no comparison of conducts merely because they did not formally answer tRe set phrasing submitted to tbem on tRe subject. True, in tRe technical sense, they did not compare tRe proximate fault of tRe one with sucR fault of tRe other; but I respectfully protest that the record should not be tested in ■a technical way. When the jury found that the defendant was guilty of such significant proximate fault as to rise to the dignity of fatal failure to exercise ordinary care, and that the plaintiff was not guilty of any such significant fault, they, necessarily, to all intents and purposes, compared the •conduct of the two, each with the other.

But, conceding for the case, that the jury erred on the evidence in not finding that plaintiff was guilty of some proximate fault, I feel satisfied the proof in that regard is not so persuasive but that, Rad the finding of no such fault been approved by the trial court, this court, under the judicial policy to sustain a jury’s finding thus approved, would not disturb it as manifestly wrong; while, Rad the jury acquitted •defendant of such fault and it Rad been so approved, it would Re most emphatically disapproved here. In other words, the •evidence of proximate fault on the part of defendant was so ■significant that the trial court would probably not Rave gone far astray, if at all, Rad it taken the question from the jury.

TRe foregoing leads to several conclusions each of which would require an affirmance here. *First*TRe error of the jury, if error there were, in not convicting plaintiff of some •contributory fault, and following that by making a compari*453son between such fault and that of the defendant, is inconsequential, since, had it not occurred, the same result, in all reasonable probability, would have occurred. *Second.*From the fact that the trial court changed the answer of the jury and yet rendered judgment ftir plaintiff; leaving the subject of contributory fault not specifically passed upon by the jury, it is manifest the judicial thought was that, strictly speaking, plaintiff, as matter of law, was guilty of some slight contributory fault, but the judgment of the jury, that if such were the case such fault did not rank with that of defendant, should not be disturbed. *Third.*The fact that the judgment was rendered as it was — if we can avoid saying the trial court studiously avoided disturbing what he considered as a substantial finding that the proximate fault of the defendant was greater than any such on the part of plaintiff, — emphatically informs us that the judge found, as matter of law, independently of the jury, that the proximate fault of defendant was greater than any such of plaintiff, which finding should not be set aside unless manifestly wrong. This last dominating and invaluable principle in our jurisprudence seems for the time to have been overlooked.

Lastly and independently of any finding or determination by the trial court, it seems that, as matter of law, the proximate fault of appellant, if there were mutual faults, was the greater.

The foregoing leaves still another matter, by no means free from difficulty, which I will suggest without discussing.

It is very doubtful whether the jury were not justified, from a view of the evidence they had a right to take, in acquitting respondent altogether, and the trial court erred in changing the finding in that respect.

Let it be considered that, technically, plaintiff should have remained out on the track. In view of the condition of the weather and his lantern, it would not within reasonable probabilities have done any good. Considering such matter and *454tbe fact tbat be placed ample signals to attract tbe attention •of tbe engineer, if tbe latter paid any attention to his duty, it seems tbe jury might well have come to tbe conclusion tbat a return to tbe caboose to put bis lantern into commission as speedily as possible, was rather commendable than reprehensible, notwithstanding tbe rules of the.company which provided for staying out on tbe track but made no provision for tbe particular emergency. True, if he bad remained out be would not have been in tbe caboose and so would not have been injured there, or at all, bad be been fortunate enough to keep clear of tbe train which was being run regardless of tbe station signal, in effect commanding a stop, regardless of whether weather conditions were such as to enable tbe engineer to see it if be went flying by; and regardless of tbe double signal which bad been set on tbe track according to tbe rules to attract bis attention; but tbat would not relieve appellant from liability. It would'take considerable space to analyze tbe evidence and show tbat it justifies all the suggestions here made, but I forego tbe labor, contenting myself with saying tbat in my judgment all such suggestions are fully warranted.