car. It is evident, from the facts alleged in the complaint, that the circumstances were such as called for immediate and prompt action on the part of the deceased; and if he misjudged as to the speed with which the cars were approaching each other, or as to the distance they were apart, or if it could be shown upon the trial that he was hindered in getting to the top of the car by the occurrence of anything which he was not bound to anticipate, a jury or court might very properly say that under the circumstances he was not negligent.

This is

We think the learned counsel are also mistaken in insisting that the complaint does not state facts which show that any damages have resulted to the infant son of the deceased. In a case of this kind, the damages which the representative of the deceased may recover are not damages which the administrator has suffered as the representative of the deceased; but it is the damage which the surviving husband, wife, father, mother, children or next of kin have sustained by reason of the death of the deceased. evident from the concluding clause of section 4256, R. S. 1878: "And in every such action the jury may give such damages, not exceeding $5000, as they shall deem fair and just, in reference to the pecuniary injury resulting from such death to the relatives of the deceased specified in this section." This complaint alleges that the deceased left no widow, but did leave one child, his lineal descendant, of the age of about three years. It also shows that the deceased father was a laboring man, working for the defendant; and, although it does not allege that he was receiving any compensation for his labor, we think the court may reasonably presume that he was receiving wages. Neither the age, condition nor other circumstances of the deceased are stated in the complaint.

We think there can be no doubt that the facts stated sufficiently show that the infant child of the deceased suffered pecuniary damage by his death, and that, without the proof of any other facts than those alleged in the complaint, the plaintiff would be entitled to a verdict for damages. It is not necessary to determine what facts might be proved under the allegations of this complaint, which are not specifically alleged, for the purpose of enhancing the damages. It is sufficient for the purpose of this demurrer, that, upon the proof of the facts alleged, the plaintiff would be entitled to some damages. The law imposes upon the father the duty of supporting and educating his minor child if he have the ability to do so. And, as the complaint alleges that the father was engaged earning money, as we must presume from the facts alleged, it sufficiently appears that he had the means, to some extent, of providing for such support and maintenance. To the extent, therefore, of such support and maintenance, the child necessarily suffered pecuniary loss by the death of the father. It is also unnecessary to determine, in this case, whether a complaint, in an action of this nature, which

did not show that some one or more of the surviving relatives of the deceased, for whose benefit the action is given by the statute, had suffered some pecuniary damage, could be sustained for the recovery of merely nominal damages as distinguished from actual damages. Some of the cases cited by the learned counsel for the appellant would seem to indicate that an action might be maintained for merely nominal damages. Blake v. R. R. Co., Eng. L. & E., 441, 442; Quincy Coal Co. v. Hood, Adm'r, 77 Ill., 73. The contrary doctrine was held in the cases of Safford v. Drew, 3 Duer, 641; Duckworth v. Johnson, 4 Hurl. & Nor., 653-657.

On both points we think the demurrer was properly overruled. BY THE COURT.-The order of the County Court is affirmed, and the cause remanded for further proceedings according to law. See note p. 103.

BERG

v.

THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

(50 Wisconsin Reports, 419. November 30, 1880.)

A refusal to submit specific questions for a special verdict in the form proposed by the appellant, is not error where such questions are substantially submitted to the jury.

It is unnecessary to submit a question of fact to the jury when the fact itself is established by undisputed evidence.

An established custom in the management of a depot yard of a railroad company, that, in switching cars therein, it is not the company's duty to have a brakeman or other person upon each group of cars, or single car, separately in motion, to give warning of its approach to men at work in the yard, but that the men in such cases must look out for themselves— would not relieve a brakeman actually in charge of a moving car, who should see that it was approaching a workman upon the track, from the duty of stopping it or warning him of its approach; and therefore it would not relieve the company from liability to such workman for an injury thus caused, under ch. 173 of 1875.

A refusal to instruct the jury that the positive testimony of two witnesses that a warning of the approach of a car was given by the brakeman "will outweigh the negative testimony of four that they did not hear it, provided the witnesses are all equally credible," was not error in this case, because it ignores the consideration of what opportunity each witness had of hearing the alleged warning, and because two witnesses did not testify positively that the brakeman gave such warning, nor was the negative testimony confined to four witnesses.

Just before the injury complained of, plaintiff was a laborer, a strong, healthy man, thirty-four years old; and he has a wife and four children. The injury made it necessary to amputate one leg above the knee; at the time of the trial, nearly a year after the accident, he was unable to do any work, and he testified that if he walked, stood, sat, or kept his leg down for any length of time, he became dizzy. In view of these facts, and of

the physical and mental suffering involved in the injury, this court does not find in a verdict for $11,000 such evidence of prejudice, passion or improper bias in the jury as justifies it in reversing a judgment for that

sum.

Appeal from the County Court of Milwaukee County.

The action was brought under chapter 173, Laws of 1875, to recover damages for personal injuries received by the plaintiff, caused by the alleged negligence of a certain employee of the defendant railway company. No question is raised on the plead

ings.

It appears from the evidence given on the trial, that, at the time he was injured, the plaintiff was at work for the 'defendant as a trackman, and had been in such employment for about two years. On the morning of December 21, 1878, he was engaged with others, under the direction of the proper foreman, in removing snow and ice from a track in the depot yard of the defendant in the city of Milwaukee. A locomotive pushing a box car passed him, going south. He looked in the direction from whence it came, and, seeing nothing else approaching, commenced work on the same track, with his back to the south. Two other men, facing south, were also at work on the same track a few feet south of him. Very soon after the plaintiff commenced work, a car was thrown upon the track on which he was at work, south of him, detached from the locomotive. It was probably the same car which passed him shortly before. There was a brakeman on the top of it. The car moved slowly, and just as it approached the two men at work there, they saw it and got off the track. It passed on, struck the plaintiff, knocked him down, pushed him along the track a short distance, and then one wheel passed over his leg, injuring it so that it was necessarily amputated above the knee.

When the plaintiff was struck, he cried out, and the brakeman (who was about to descend, or was descending from the car) ran to the brake at the other end of the car, turned it down, and stopped the car before the second wheel of the forward truck passed over the plaintiff.

The brakeman testified that when about 200 feet distant from the plaintiff he called to him and the others at work there to "look out;" that he saw the two men get off the track, and supposed the plaintiff had done so until he heard the latter cry out; and that he could have seen the plaintiff until the car came within twenty feet of him. A witness who was working near the plaintiff on another track, testified that when the car was some distance from the plaintiff (but nearer the witness), he heard some one call "Look out," but don't know who called. The plaintiff, the two men working near him on the same track, two other men who were at work near him on other tracks, and the section foreman, who was ten rods or more further from the car than was the

plaintiff, all testify that they did not hear the brakeman give any warning of the approach of the car. It further appears that, at the time of the accident, the weather was cold, and the plaintiff's cap was pulled down over his ears; but how closely, or to what extent his ability to hear was thereby impaired, does not appear.

At the close of the plaintiff's testimony, and again after the testimony was all in, counsel for defendant moved for a non-suit. Both motions were denied.

Counsel for defendant proposed six instructions, all of which were given except the following: "The positive testimony of two witnesses to the fact that the brakeman called out, will outweigh the negative testimony of four who testify that they did not hear it, provided the witnesses are all equally credible."

Counsel for defendant also demanded a special verdict, and asked the court to submit the following questions to the jury: "(1.) Was the brake on this car set at the time of the accident? (2.) Was it plaintiff's duty, according to the custom of this railroad yard, to look out for himself while working on the track? (3.) Was this accident the result of any negligence on the part of the defendant? (4.) If you answer the foregoing question in the affirmative, state in what that negligence consisted. (5.) Was plaintiff in the exercise of due care when he took up his position on the track with his back towards the switch engine and cars, and his cap drawn down over his ears?"

The court refused to submit such questions to the jury, but submitted instead thirteen questions, the first four and the twelfth of which were proposed on behalf of the plaintiff. The questions thus submitted, and the answers of the jury thereto, are as follows: "(1.) Does ordinary care and prudence require that a notice, signal or warning should be given to persons placed to work as the plaintiff was placed at the time he sustained his injury, where a car is run upon such track as the car which struck the plaintiff was? A. Yes. (2.) Was such a notice, signal or warning given at the time the plaintiff was injured? A. No. (3.) If not, was the omission to give the same negligence on the part of the defendant or its employees? A. Yes. (4.) Was such negligence the proximate cause of the injury sustained by the plaintiff? A. Yes. (5.) Was this car going at a slow rate of speed? A. Yes. (6.) Was there a brakeman upon the car just preceding and at the time of the accident? A. Yes. (7.) Did this brakeman call to the men working on the track to look out? A. No. (8.) Did the brakeman set up the brake before the accident, or not until after the man was knocked down? A. Not until afterwards. (9.) Was the plaintiff told at the time he went into defendant's employ, to look out for himself while working at the track? A. No; except, possibly, in a general way. (10.) Did plaintiff know it to have been a frequent occurrence in this yard to send cars upon the

different tracks in the yard without having brakemen upon them? A. Yes. (11.) Was the brakeman guilty of a want of ordinary care and diligence at the time of the accident? A. Yes. (12.) Was the plaintiff guilty of want of ordinary care which contributed to his injury? A. No. (13.) Do you find for the plaintiff or for the defendant, and, if for the plaintiff, at what sum do you assess his damages? A. We, the jury, find for the plaintiff, and assess damage in the sum of $11,000."

A motion for a few trial was denied, and judgment for the plaintiff was entered pursuant to the verdict, for $11,000 and costs. The defendant appealed from the judgment.

For the appellant there was a brief by Melbert B. Cary, and oral argument by John W. Cary. They made the following among other points: 1. The court below erred in refusing to charge the jury as requested by defendant. The instruction asked was based upon the undisputed evidence in the case, and upon the ruling in Urbanek v. Railway Co., 47 Wis., 59. See C. & A. R. R. Co. v. Gretzner, 46 Ill., 75; Culhane v. R. R. Co., 60 N. Y., 133. 2. The court erred in refusing to submit to the jury the questions propounded by defendant. Upon the second question hinges the liability in this case. It involved matters of pure fact, to be found by the jury. 3. The damages are excessive. Actual damages only are to be allowed. These include compensation for diminished capacity for work, and for pain and suffering. Plaintiff was earning about $300 per annum. He was a common laboring man of middle age, not a skilled laborer or in the direct line of any possible promotion. The present pecuniary value of his entire capacity for earning money was, by the Northampton tables, $3054.90; by the Carlisle tables, $3388.50. But his capacity is not diminished more than one-half. The plaintiff's sufferings do not appear to have been unusual. He was confined to his bed but ten weeks. The sum allowed is unreasonably large, and evinces partiality, prejudice and a perverted judgment on the part of the jury. Goodno . Oshkosh, 28 Wis., 300; C. & N. W. Ry. Co. v. Jackson, 55 Ill., 492; Collins v. R. R. Co., 12 Barb., 492; Potter v. Ry. Co., 21 Wis., 372; 22 id., 615.

For the respondent there was a brief by Jenkins, Elliott & Winkler, and oral argument by Mr. Winkler:

The instructions given to the jury were not excepted to, and not made part of the bill of exceptions. They must be presumed to have been not only correct but full. Error is not presumed, but must be shown by the party alleging it. O'Malley v. Dorn, 7 Wis., 236; Townsends v. Bank, id., 185; Parish v. Eager, 15 id., 532; Kelley v. Kelley, 20 id., 443; Eaton v. Lyman, 33 id., 34. The instruction refused must be presumed superfluous, even though it be correct. Osen v. Sherman, 27 Wis., 501; Karasich v. Hasbrouck, 28 id., 569. But the rule of law embraced therein is not