The following opinion was filed September 22, 1896:
WiNslow, J.
Thirty-two errors are assigned and argued in the defendant’s brief. We shall probably be pardoned if we do not discuss all of them at length in this opinion. We *364will endeavor to state our views upon the more important contentions made, leaving the lesser assignments to be overruled sub silentio.
The negligence upon which the plaintiff relied for a recovery was the act of White, the foreman of the other switching gang, in running his engine and cars against the car standing on track No. 4, after he had been notified that Pier was about to chain a car on that track. As tending to prove that such act on the part of White was negligent, evidence was offered by the plaintiff tending to show that it was customary in the yard, when a car was to be chained, for the foreman to send a flagman to notify any crew which might be at the other end of the switch of the fact that a car was about to be chained, and, after waiting a reasonable time for the flagman to reach his destination, to proceed to chain up the car, without waiting for the return of the flagman, or for a signal that he had performed his mission. On the other hand, evidence was introduced by the defendant tending to controvert the existence of any such custom in the yard. It is claimed by the defendant that such custom must be proven beyond a reasonable doubt, and that, if such custom be not so proven, there was no negligence on the part of White, and the plaintiff’s cause of action at once fails. Both of these contentions are untenable. The custom which the plaintiff attempted to prove was not a custom prevailing in a particular trade or business offered for the purpose of fixing, controlling, or defining the contract relations of parties. It was simply a customary way of doing certain things prevailing in that switch yard, which, if proven, would be a fact proper to be considered in connection with the other surrounding facts in judging of the conduct of White and the plaintiff. If proven satisfactorily, it would not necessarily determine the question of negligence or no negligence, Such customs may be proven. Simonds v. Baraboo, 93 Wis. 40" court="Wis." date_filed="1896-04-14" href="https://app.midpage.ai/document/simonds-v-city-of-baraboo-8185171?utm_source=webapp" opinion_id="8185171">93 Wis. 40. We know of no"authority *365which holds that they must be proven by any higher degree or quantity of evidence than other facts in civil cases, nor do we perceive any good reason why such a rule should prevail. But, even if the custom were absolutely disproven in the present case, there would still be ample ground left for the plaintiff to claim negligence. The fact that the foreman, White, after being warned that a car was about to be chained on track Eo. 4, deliberately ordered a train to be backed against the cars standing on that track, and moved them, was in itself evidence sufficient to go to the jury on the question of negligence, regardless of the question whether any custom was proven or not.
Exception ivas duly taken to the refusal of the court to embody the following questions in the special verdict: “ (1) Did Gang Foreman White, after he was notified that Pier was going to chain up a car, do what a man of ordinary intelligence and prudence, conducting the business carried on by the defendant, and in White’s place and stead, would not have done in the light of the attending circumstances? (2) If you answer the first question ‘Yes,’then answer this question: Ought a man of ordinary intelligence and prudence, conducting the business carried on by the defendant, and in White’s place and stead, to have reasonably expected, under the attending circumstances, that such want of care would be likely to cause a bodily injury of some kind to the plaintiff? (3) If you answer the-first question ‘Yes,’ then answer this question: Was plaintiff’s injury the natural and probable consequence of such want of care, and was such injury one which a man of ordinary intelligence and prudence, conducting the business carried on by the defendant, and in White’s place and stead, might or ought to have foreseen, in the light of the attending circumstances ? ”
. There was no error in refusing to submit these questions. The first question was so worded as to be almost' certain to confuse any ordinary juryman. Eot only is it puzzling by *366reason of its involved verbiage, but it is readily seen that, whether it was answered in the affirmative or negative, no light would be cast upon the issues in the case. The other questions are but dependent upon the first; hence, if the-first question was rightly refused, there can be no error in refusing' the others, because they really ask no questions at all, unless a certain answer has been previously given to the first. Rut it is vigorously claimed that the principle embodied in these questions should have been placed before the' jury either in the form of a question or an instruction, although no instruction was asked on the subject. The principle which is supposed to be presented by these questions is the familiar one, which has been frequently stated, namely, that' the test of proximate cause is whether a person of ordinary intelligence and prudence, under similar circumstances, ought to have expected that an injury would occur by reason of his negligent act. McGowan v. C. & N. W. R. Co. 91 Wis. 147" court="Wis." date_filed="1895-10-22" href="https://app.midpage.ai/document/mcgowan-v-chicago--northwestern-railway-co-8184939?utm_source=webapp" opinion_id="8184939">91 Wis. 147. The sixth interrogatory of the verdict bears upon this point. It is as follows: “ If you answer the fourth interrogatory in the affirmative, did said Gang Foreman White have reason to anticipate and apprehend that his action in the premises was liable to result in injury to the plaintiff? ” In submitting this question the court charged the juiy as follows : “ This is another question in the same form, because there must be not only negligence, but there must be negligence which was the proximate cause of the injury, and must be such negligence as the person guilty of it or 90m-mitting it had reason to apprehend would result in the injury complained of, or some such injury. It is of no consequence how negligent a man is, if the negligence does not cause the injury complained of. If he is negligent in some matter foreign to the suit, it is a matter not even permitted to be proved. It is not enough to prove a man was careless. You must prove he was careless as to the very matter about which you allege his. negligence. It is not *367enough to prove negligence, unless you prove it was the proximate, direct, immediate cause of the injury, and of any injury which he had reason to apprehend would result. -So it is of the -first importance that you should decide, first, whether the gang foreman was guilty of negligence which was the proximate cause of plaintiff’s injury, and, second, whether that negligence was such that he had reason to apprehend that it would or was liable to result in injury to the plaintiff.” By this question, and under these instructions, it will be readily seen that the judge told the jury practically that the question was whether White ought to have apprehended-that injury to the plaintiff would probably result from his negligent act. This was manifestly correct. Whether White ought to have apprehended the probable injury to the plaintiff as the result of his act was and is one of the crucial questions in the case. It would have been eminently proper to have instructed the jury that, if an ordinarily intelligent and prudent person would have apprehended such a result, then White ought to have apprehended it; and doubtless the judge would have added this instruction had it been asked, but it was not asked, and we cannot conceive that the jury could be misled by the failure to give it. Such must have been the practical effect of the question and instructions as given.
Exception is taken because the court refused to submit a number of other questions to the jury. Among these are the following: “Did the plaintiff have control over the means, time, and manner of chaining the car?” “Did the plaintiff have control over the means with which and the manner in which he should be protected -while chaining the car?” Also a number of questions embodying the inquiry whether the plaintiff took such precautions for his own safety as men of ordinary intelligence and prudence would have taken under the same circumstances. The first *368•two questions above quoted refer to evidentiary facts, not necessary to be decided in the verdict. The last series of ■questions referred to are covered by the verdict and the instructions of the court. In submitting the twelfth interrogatory the judge said to the jury; “ The twelfth interrogatory ■continues the same subject by putting to you the question whether or not, in view of all the precautions which he had adopted, and in view of all the circumstances surrounding him, had he any reason to apprehend that he would be injured while chaining said car? His want of ordinary care, if it existed, must have been of such a nature as to proximately cause or contribute to the injury of which he complained, and of such a nature as to charge him with the duty of apprehending the consequences of such want of ordinary care,— such a nature that a reasonable man, under like circumstances, would have apprehended the danger which followed.” It is contended that the ninth finding is contrary to the evidence, and shows passion and prejudice. The wording of the question is unfortunate, and it is difficult to determine just what was meant by it. Doubtless the ■emphasis should be on the word “any” and probably the jury meant that the plaintiff was not at liberty to adopt any precaution he pleased while chaining a car. Understood in this sense, there was evidence to support the answer. ' We d'o not see, however, that the question and ■answer dispose of any material issue in the case, and, as we consider the verdict entirely complete without them, they become immaterial.
There are some questions raised upon rulings on evidence, none of which we deem essential to even state. We have discovered no prejudicial error in any of the rulings. The special verdict is quite full and complete, and, with the exception of the ninth question and answer, tells a plain and consistent story, and one which justifies the judgment ren-*369tiered. The judge’s charge was full and fair, and the whole record impresses us strongly with the idea that justice has been done with no material error.
By the Court.— Judgment affirmed.
A motion for a rehearing was denied November 24, 1896.