#### Euting, by guardian *ad*litem, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*February 23*

March *22, 1904.*

(1) *Decision on former appeal: Effect*(2-4) *Railroads: Exploding torpedo on track: Injury to bystander: Liability: Damages.*

1. A decision upon a former appeal that upon certain facts defendant is liable for an injury becomes a rule of law governing the parties in the action at all subsequent stages thereof.

2. The evidence in this case is *held*to support a special finding by the jury that a torpedo which was placed upon the rail near an engine was so placed, not by the fireman, but by the engineer himself, who thereupon moved the engine over it, causing it to explode and injure the plaintiff.

3. It is immaterial whether or not the torpedo was so placed upon the track in the conduct of defendant’s business if the engineer ran the engine over the torpedo in the conduct of such *652■business, with. knowledge of its presence, under the circumstances of plaintiff’s proximity and peril.

4. By the explosion of a torpedo the main artery in the thigh of a boy nine years old was severed and, after healing, an aneurism developed which necessitated a serious operation, as a result of which the strength and vigor of the limb were likely to be in some measure permanently impaired. He was obliged to travel on crutches for about two years, and suffered great pain up to a time considerably beyond the operation, with some pain up to the time of the trial, three years after the injury. *Held,*that an award of $2,000 damages was not excessive.

Appeal from a judgment of the circuit court for Kenosha county: E. B. Belden, Circuit Judge:

*Affirmed.*

This is an appeal from judgment in favor of the plaintiff rendered upon a retrial of the same action considered at 116 Wis. 13, 92 N. W. 358. The jury returned a special verdict that the plaintiff Was injured by explosion of the torpedo; that such torpedo was placed on the rail not .by the fireman, but by the engineer, in the conduct or performance of defendant’s business; and'that the engine was started by the engineer, and not by the fireman, with knowledge that the torpedo was upon the rail; that the placing of the torpedo upon the track and its explosion were the proximate cause of plaintiff’s injury, and that his damages were $2,000. Dei fendant moved to change the answers to the questions so as to find that the fireman placed the torpedo, and that the engineer had no knowledge of such fact, and that it was not so placed in the conduct of defendant’s business. That motion, as also a motion for a new trial, was overruled, and judgment entered.

*Edward M. Hyzer,*for the appellant.

For the respondent there was a brief by *Balcer & Balcer,*and oral argument by *N. L. Balcer.*

Dodge, J.

The weight of appellant’s contention is addressed to the claim that the finding that the engineer placed the torpedo on the rail is not supported by the evidence. This *653conclusion rests upon the testimony,of three hoys, who are all positive in their statements that the engineer was the man who did this. Confessedly,, it was either the engineer or fireman, and the question is mainly one of identification. That identification on the last trial was threefold: First, the' testimony is positive that the man who placed the torpedo was-the man who started the engine, and the engine was confessedly started hy the engineer; secondly, that the man who-placed the torpedo was the older and grayer man of the two — • hoth the fireman and engineer being in court for the inspection of the jury; again, that two of the hoys, some months afterwards, recognized the man who was running the same engine (concededly the engineer) a§ the man whom they say put the torpedo on the track; and, further, the same witnesses identified the engineer in court as that man. This evidence is stronger and more definite than was the proof upon the former trial, which this court held sufficient to raise a jury issue. Counsel for appellant urges that this testimony is incredible, but it is so only if we must believe the-testimony of the engineer and fireman, who do, indeed, testify not only to acts, but to' facts inconsistent therewith. This, however, does not create that phage of incredibility which warrants the court in taking from the jury the right to weigh evidence. Such condition no more than raises a question of relative credibility of conflicting witnesses, which is essentially within the jury province. We deem it clear that there is evidence which might have been believed by the jury sufficient to support their finding on this question. The fact being thus established, the liability of the defendant .was settled upon the former appeal. The decision then made became a rule of law governing the parties in this action at all future stages .thereof, and no error can be attributed to the trial court in applying that rule to the same state of facts considered in that opinion. *Crouse v. C. & N. W. R. Co.*104 Wis. 473, 480, 80 N. W. 752; *Wollman v. Ruehle,*104 *654Wis. 603, 80 N. W. 919; *Finney v. Guy,*111 Wis. 296, 87 N. W. 255; *Collins v. Janesville,*111 Wis. 348, 359, 87 N. W. 241, 1087.

Some contention is made that tbe damages are excessive. 'Tbe plaintiff, about nine years of age, received an injury wbicb severed tbe main artery in bis tbigh, wbicb, after healing, developed an aneurism, wbicb necessitated bis being sent to a hospital in Chicago and there subjected to tbe serious ■operation of reopening tbe wound, removing tbe aneurism, .and tying up tbe artery, thus destroying tbe main femoral artery as an unbroken duct for all time, necessitating that The blood to nourish that limb shall find its way through •smaller auxiliary arteries, whereby, as there is some testimony, tbe strength and vigor of tbe limb are likely to be in .some measure impaired permanently. Great pain and suffering accompanied tbe injury and tbe period up to and con•siderably beyond tbe operation, and diminishing pain continued up to tbe time of trial, some three years after tbe injury. Tbe plaintiff was obliged to travel on crutches for about two years, and still suffered some, though not very .•serious, impairment of tbe use of tbe limb. In this situation we are unable to say that $2,000 is so excessive an allowance •as to warrant this court, upon appeal, in setting aside tbe verdict after tbe same has received tbe approval of tbe trial 'Court upon a motion for new trial.

A further finding by tbe special verdict that tbe torpedo •was placed on tbe track in tbe conduct of defendant’s business is assailed as unsupported by evidence. That is, however, so entirely immaterial to tbe result that we may forego ■consideration of tbe assignment of error. Ooncededly, tbe •engineer ran tbe engine over tbe torpedo in the conduct of defendant’s business. If he did so with knowledge of its presence, under .the' circumstances of plaintiff’s proximity •and peril, tbe defendant’s liability is established by tbe bold-ing on tbe former appeal.

*By the Court.*— Judgment affirmed.