114 Wis. 38 | Wis. | 1902
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
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
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.