#### Zahn, Respondent, vs. Milwaukee & Superior Railway Company, Appellant.

*March 11*

April *1, 1902.*

*Railroads: Appeal and error: Motion for new trial, when not necessary: Practice: Master and servant: Negligence: Personal injuries: Presumptions.*

1. Where there has been a motion for a direction of a verdict with due exception properly preserved in the record, the supreme court will review the evidence in order to determine whether the motion should have been granted.

2. In such case a motion for a new trial is not necessary.

3. Plaintiff, a railway brakeman, was injured while coupling cars. The train crew consisted of plaintiff, two other brakemen, and the fireman, the engineer being absent. One of the other brakemen signaled to the fireman to back *to make*a coupling, and two cars*were coupled, one by such brakeman, and the other by plaintiff, who then went to a third car to adjust the coupling, and, the engine continuing to back, plaintiff's hand was caught and crushed. It appeared that it was a custom on defendant’s road, under such circumstances, for the engine to continue backing until a signal was given to stop. Plaintiff had been in defendant’s employ for seven or eight years, and was familiar with its manner of operating trains. The fireman testified that he did not know that plaintiff was making a coupling. No signal to stop was given to the fireman by any one. *Held,*that plaintiff must be presumed to have known of the custom mentioned, and, knowing it, to have assumed the usual and ordinary risk incident thereto.

4. In such case it cannot be said that the fireman was negligent.

Appeal from a judgment of the circuit court for Waukesha county: James J. Dick, Circuit Judge.

*Reversed.*

Action under sec. 1816, Stats. 1898, to recover damages for personal injuries claimed to have been sustained by plaintiff while in the discharge of his duties as brakeman for defendant. The accident occurred a little after noon on ISTovember 3, 1899. The plaintiff was engaged in coupling cars»on a side track in the yard at North Lake station. The negligence alleged is that the fireman, who was in charge of the engine *39while the engineer was at dinner, backed the engine, with several cars attached, without any signal from plaintiff, and without any notice or signal to plaintiff, suddenly against a car that plaintiff was preparing with coupling links, and caught and crushed his hand. A motion for a nonsuit at the close of plaintiff’s testimony was denied, as was also a motion to direct a verdict for defendant at the close of the testimony. Both rulings were duly excepted to.

A special verdict was submitted, in which the jury found substantially as follows: (1) That plaintiff was injured while in defendant’s employment; (2) that he was injured by having his right hand caught between the bumpers of the ears; (8) that the fireman was in charge of the engine; (4) that the engine and cars attached to it were pushed back against the car the plaintiff was preparing for coupling without any signal from plaintiff; (5) that the engine and cars were so pushed back without any notice to plaintiff; (6) that they were pushed back without any knowledge on the part of plaintiff; (7) that plaintiff was engaged in the capacity of brakeman; (8) that plaintiff was not then employed in the capacity of conductor; (9) that the plaintiff had no knowledge of the absence of the engineer; (10) that plaintiff did not notify the fireman he was going between the cars; (11) that plaintiff did not see the approaching car in time to have removed his hand from between the two drawbars; (ll-J) that plaintiff did not hear the approaching engine and cars in time to have removed his hand; (12) that plaintiff was not injured in consequence of a movement of the cars in the usual and ordinary manner; (13) that the condition of the coupling apparatus was not the sole and proximate cause of plaintiff’s injury; (14) that plaintiff was injured by the negligence of the fireman in charge of the engine; (14J) that a person of ordinary care, under the circumstances, should not have known that the engineer was absent from the engine; (15) that plaintiff was not guilty of any want of ordinary *40care wbicb contributed, directly to produce tbe injury; (16) that tbe defendant’s employee was guilty of negligence wbicb was tbe natural probable cause of tbe accident, and wbicb accident ought to bave been foreseen by a person of ordinary care and prudence; (l'T) damages, $2,500.

Defendant submitted a motion “for an order setting aside tbe answers to questions numbered, respectively, 12, 14, 14^, 15, and 16, in tbe special verdict rendered by tbe jury herein, for tbe reason that tbe same are unsupported by tbe evidence, and are against tbe uncontradicted evidence, and changing and perfecting tbe said special verdict in accordance with tbe uncontradicted evidence by answering question number twelve Wes,’ question number fourteen ‘No,’ question number fourteen and one-half ‘Yes,’ question number fifteen ‘Yes,’ and question number sixteen ‘No,’ and granting judgment in favor of tbe defendant and against tbe plaintiff on tbe said special verdict as so changed and perfected, and upon tbe uncontradicted evidence.” This motion was denied, and plaintiff’s motion for judgment was granted. Defendant’s appeal is from tbe judgment.

For tbe appellant there was a brief by *Spooner & Bose-crantz,*and oral argument by *G. P. Spooner.*

For tbe respondent there was a brief by *By an, Merton &*Newbury, and oral argument by *T. JE. Byan.*

BaedeeN, J.

Tbe plaintiff argues that, inasmuch as there was no motion for a new trial, tbe only question to be considered is whether there is any evidence to support tbe findings challenged. So far as relates to a decision of tbe question raised by tbe denial of tbe motion for a nonsuit, many of tbe cases say that, in absence of a motion for a new trial, tbe court will not review tbe evidence. Tbe rule in this regard is sufficiently stated in *Guetzkow v.*Smith, 105 Wis. 94, 80 N. W. 1109. It rests upon tbe fact that evidence may bave been admitted before tbe close of tbe trial sufficient to *41warrant a submission of the ease to .the jury. But wben there has been a motion for a direction of a verdict, with due exception preserved in the record, the rule indifferent. In such a situation this court will review the testimony in order to determine whether the motion should have been granted. *Second Nat. Bank v. Larson,*80 Wis. 469, 50 N. W. 499 ; *Plankinton v.*Gorman, 93 Wis. 560, 67 N. W. 1128; *McGinn v.*French, 107 Wis. 54, 82 N. W. 724.

The points made by defendant are that the undisputed evidence shows that the engine was being operated in the usual and ordinary manner, and that the plaintiff was guilty of contributory negligence as a matter of law. The negligence upon which plaintiffs claim of recovery is based is that the engine and cars attached were pushed back against the car which plaintiff was preparing for coupling without a signal from or warning to the plaintiff. The evidence shows that at the time of the injury the engine was in charge of plaintiffs "brother, who was the fireman. The engineer had gone to his dinner, and the fireman was operating the engine. The train crew then consisted of the fireman, the plaintiff, and two other brakemen. There were several cars on the side track near the east end, which were not coupled together. The evidence is somewhat vague as to their exact location. The engine was backed in on the switch at the east end. The brakeman, Sykes, gave a signal to back up to make a coupling, and two ears were coupled, Sykes making one and the plaintiff the other. There was yet one car to be attached, about two car lengths distant. Plaintiff ran to the stationary car to adjust a link for the coupling. While so engaged, the engine, with the cars attached, continued backing west, and plaintiffs fingers were caught between the bumpers and crushed. The undisputed evidence shows that it was the custom on defendant’s road that when a signal is given to the person operating the engine to move backward to make a coupling to continue *42backing until a signal to stop is given. Tbe brakeman, Sykes, gave a signal to move backward, and two couplings were made. Tbe engine continued moving slowly backward without any signal to stop until after plaintiff was injured. Tbis was in conformity to tbe usual custom of tbe road. Tbe plaintiff bad been in tbe employ of defendant seven or eight years, and bad bad charge of a train for a year or two before tbe accident. He was familiar with tbe manner of operating its trains, and must be presumed to have known of tbe custom mentioned. Moreover, it is to be noted that after tbe engine bad been cut off from tbe cars on tbe main line tbe plaintiff bad not been in touch with tbe acting engineer in any way whatever. Tbe signal for tbe movement of tbe engine bad been given by tbe brakeman, Sykes, and the couplings made were in obedience to bis directions. Tbe fireman testified that be did not know bis brother was making a coupling. In view of tbis fact, it is difficult to see any basis for tbe plaintiff’s recovery. Tbe engine was being handled and moved strictly in accordance with tbe established custom of tbe road. Tbe plaintiff certainly knew of such custom, and, knowing it,, assumed tbe usual and ordinary risk incident thereto. It is also difficult to see any ground for saying that tbe acting engineer was negligent. If be did not know tbe plaintiff was making a coupling, be was not bound to give him a warning or to make a signal as tbe ears were moving. No ground is apparent for saying that be ought to have known tbe plaintiff was between tbe cars. There- is no room for conflicting inferences from tbe facts disclosed. They all point one way. Tbe jury, by its twelfth finding, say that plaintiff was not injured in consequence of a movement of tbe cars in tbe usual and ordinary way. Tbe only testimony on tbe subject given by plaintiff’s brother and tbe superintendent of the road was directly contrary to tbis finding. By tbe fourteenth finding they say plaintiff was injured by tbe negligence of the fire*43man in charge of the engine. Assuming the engine was being run in the usual and ordinary manner, we lodk in vain for anything in the record to support this conclusion. Without some showing upon which the finding of negligence can rest, there is no foundation for the verdict, and the other findings become immaterial. We may say, in passing, that the finding against plaintiff’s contributory negligence has very little in the record to warrant it. The court should have granted defendant’s motion to direct a verdict. Not having done so, it was his duty to have corrected the answers of the jury in the special verdict, and to have rendered judgment for defendant. *Menominee River S. & D. Co. v. M. & N. R. Co.*91 Wis. 447, 65 N. W. 176; *Conroy v. C., St. P., M. & O. R. Co.*96 Wis. 243, 70 N. W. 486; *Keller v. Schmidt,*104 Wis. 596, 80 N. W. 935; *Stafford v. Chippewa Valley E. R. Co.*110 Wis. 331, 85 N. W. 1036.

*By the Court.*— The judgment is reversed, and the cause is remanded with directions to the circuit court to correct the verdict by changing the answer to the twelfth question from “No,” to “Yes,” and the answer to the fourteenth question from “Yes,” to “No,” and the answer to the sixteenth question from “Yes,” to “No,” to conform to the facts, and to render a judgment on the verdict as so corrected in favor of defendant for costs.