ELLIOTT, J., took no part in the consideration of this case. Duty of Street Railway Company to Pave and Repair Street-See ante Sioux City St. R. Co. v. Sioux City, and note pp. 169, 176. SHENNERS v. WEST SIDE STREET R. Co. (Wisconsin Supreme Court, December 16, 1890.) Street Railway-Injury to Child on Track-Special Findings.-The plaintiff sued for the death of her infant child, who was run over by one of the cars of the defendant street railway company. The jury found specially, taking into account all the circumstances of the case, that the death of the child resulted from the negligence of defendant's driver in charge of the car when the accident occurred. The jury also found specially, that at the time the driver first saw the child or could have seen him, in the exercise of proper care, the car was about 90 feet distant: that the child then ran suddenly towards the car, and got between the horses and the car before he could be prevented or the car stopped; and that the driver did not have any reason to expect that the child would undertake to cross the track. Held, that the findings supported a judgment for the plaintiff, and that it was not error to deny defendant's motion for judgment upon the special verdict. APPEAL from Circuit Court, Milwaukee County. Clybourn street, in Milwaukee, runs east and west, and crosses Clermont street at right angles. The complaint alleges, in effect, that the plaintiff was a resident of Milwaukee, and three years of age; that the guardian was appointed October 3, 1888, as stated; that the defendant was a corporation, created and existing under, and by virtue of, the laws of this state, and the ordinances of said city, and engaged in operating and running street cars, propelled by horses, for the purpose of carrying passengers, for hire, upon and over said Clybourn and other streets of said city; that, August 19, 1888, a certain car of the defendant, propelled by horses, was, by its servant being driven upon said Clybourn street while said plaintiff was lawfully crossing on the east side of said Clermont street, and the defendant, by its servant, so negligently drove and conducted said street car that, thereby, the same ran and was driven against the plaintiff, and seriously and permanently injured him, to his damage in a sum named: that said Clybourn street, and other streets, upon which the defendant was so operating its street railway, were public highways and thoroughfares, over which great numbers of citizens of said city were constantly passing and repassing; that in addition to the negligence mentioned, and for more than six months immediately prior to August 19, 1888, the defendant negligently and unlawfully suffered and permitted that portion of said Clybourn street, at the crossing at the intersection of the same and Clermont street, to be and remain out of order and insufficient, by suffering and permitting that portion of Clybourn street, at said crossing, lying between the outside rails of said tracks, to be and remain below the grade of the surface of the balance of said street, and below the top of said rails upon said track, the distance of six to eight inches; that the defendant carelessly and negligently permitted said car to get out of repair, so that the brakes, and other appliances thereon, were and had become out of repair, worn, broken, and unserviceable, so that they would not stop the said car with reasonable certainty or dispatch, or within a proper and reasonable distance, yet that the defendant carelessly and negligently used and operated the same, as aforesaid, and the defendant's servants so negligently drove and conducted said unsafe, dangerous, and unserviceable car, that thereby the same ran and was driven against the plaintiff, and seriously injured him, as aforesaid, whereby he was permanently disabled, losing his right foot entirely, and partly the use of his left foot, besides other great and serious bodily injuries, to his damage in the amount stated. The answer denied all negligence on the part of the defendant, and alleged contributory negligence. At the close of the trial, and under the charge of the court, the jury returned a special verdict to the effect: (1) The plaintiff's injuries, of which he complains in this action, were the result of the negligence of the defendant's driver, who had charge of the car by which the injuries were caused, taking into account the condition of the street, the extent to which it was used, the steepness of the grade, and all the facts and circumstances of the case, bearing upon the question. (2) The parents of the plaintiff were not guilty of negligence in leaving him with their daughter Jane. (3) The said daughter Jane was not guilty of negligence in suffering the plaintiff to go abroad with her younger sister. (4) Said younger sister was not guilty of negligence in leaving the plaintiff with his cousin, as she did. (5) Should the court be of the opinion that the plaintiff is entitled to judgment, we assess his damages at $8,000. (6) The driver of the defendant's car was not driving the horses at an ordinary, usual, and moderate rate of speed, before and at the time of the accident. (7) At the time the driver first saw the child, or could have seen him, in the exercise of proper care, the car was about 90 feet west of the plaintiff, at the east crossing. (8) The child suddenly started from the place where he was first seen by the driver, and ran towards the horses and the car. (9) The child ran between the horses and the defendant's car before he could be prevented, and before the car could be stopped. (10) The driver of the street car did not have any reason to expect that the child would undertake to cross the street at the time. (11) The defendant company was not guilty of any other want of ordinary care which caused the injury, except the negligence of the driver. Thereupon the plaintiff moved for judgment in his favor and against the defendant, upon the special verdict rendered by the jury; and the defendant moved for judgment in its favor upon the record, pleadings, and the special verdict rendered by the jury. The court overruled and denied the defendant's motion, and ordered that the plaintiff have judgment against the defendant upon said special verdict, upon condition that within five days from the date thereof the plaintiff should remit, from the damages assessed and found by the jury, the sum of $3,000, and, in case the plaintiff failed so to do, then that said verdict be set aside, and a new trial granted, but that, if the plaintiff filed such remittance, then he was to have judgment against the defendant for the sum of $5,000 damages. The plaintiff's attorneys thereupon did remit from said verdict said sum of $3,000, and consented to take judg ment for the sum of $5,000, and thereupon the court ordered judgment to be entered against the defendant, and in favor of the plaintiff, for that amount, with costs taxed at $246.83. From the judgment entered thereon accordingly, the defendant brings this appeal. Burton Hanson and Danforth Becker, for appellant. Question at CASSODAY, J.-The only error assigned is the granting of the plaintiff's motion for judgment upon the special verdict, and in denying that of the defendant. The effect of the pleadings, and the substance of the several issue. findings in the special verdict, with their respective numbers, are given in the foregoing statement. The second, third, and fourth findings negative the alleged contributory negligence of the plaintiff, and are not questioned. The fifth finding assessed the plaintiff's damages, and, as subsequently reduced, is not questioned. The other findings all relate to the alleged negligence of the defendant. The real question is whether it appears from those findings, when taken together, that the injury was caused by the defendant's negligence. We fully agree with the learned counsel for the de Findings of special verdict. fendant in saying that "the question arising on this appeal is whether the special verdict entitles the plaintiff to a judg If not, then the defendant should have judgment. In determining this question, the same presump tion will follow each special finding which would attach to a general verdict; that is, the fact found therein is presumed to have been supported by a preponderance of evidence, and to have been established to the satisfaction of the jury. Each finding of the special verdict will control, as to the particular fact found therein, as against any other finding upon other issues, the same as it would control in case of inconsistency with a general verdict." A verdict is a declaration of the truth as to the matters of fact submitted to the jury. This is true of a special verdict as well as a general verdict. However many separate questions a special verdict may determine, it is nevertheless returned as a whole, and as such, is a unit. Ryan v. Rockford Ins. Co., 77 Wis. 611; Treat v. Hiles, 75 Wis. 265. Of course, two separate findings in conflict with each other, substantially upon the same specific fact, would nullify each other; so the finding of a specific fact, inconsistent with a more general finding upon the same subject, will, to the extent of such specific fact, cut down and limit such more general finding. In other words, some findings may be very broad and comprehensive, while others may be very narrow and specific, and hence of minor importance. In the case at bar the first finding is very broad and comprehensive and covers every phase of the driver's negligence taking into account the condition of the. Effect of gen- street, the extent to which it was used, the steeperal finding. ness of the grade, and all the facts and circumstances of the case bearing upon the question. In the language of counsel, above quoted, the fact therein found" is presumed to have been supported by a preponderance of evidence, and to have been established to the satisfaction of the jury." Among the facts thus presumed to have been established by the evidence, were the condition of Clybourn and Clermont streets being out of grade with the railway track at the crossing in question; the extent to which those streets, as public highways and thoroughfares, were used by citizens passing and repassing; the steepness of the grade, and whether the condition of the car prevented its being stopped with reasonable certainty or dispatch, or within a proper and reasonable distance, as alleged and indicated in the foregoing statement. As indicated, the real question is how much is to be eliminated from that general finding by other specific findings bearing upon the question of the defendant's negli gence; and whether, after such eliminations there is still enough left to support the judgment. The sixth finding is a negative. It is simply to the effect that the car was not being driven at an ordinary, usual and moderate rate of speed before and at Special findthe time of the accident. That would be equally true, if it were then being driven up a steep grade with verdict. excessively slow, or, as the inferences seem to be, ings not in consistent down a steep grade excessively fast. That finding, therefore, in no way militates against the first finding, but inferentially supports it. The seventh finding is to the effect that at the time the driver first saw the child, "or could have seen him, in the exercise of proper care," the car was about 90 feet west of the plaintiff at the east crossing. This does not determine whether the driver in fact saw the child, but simply that, when the car was 90 feet west of the plaintiff at the east crossing, he did see him, or could, if he had been in the exercise of ordinary care. Nor does it determine the location of the child at the time, except that he was at the east crossing. That finding would be equally true if the child was, at the time, at the outside edge of Clybourn street, or within. two or three feet of the railway track, or at some point between. Nor does it determine whether the child was, at the time, standing or walking, nor, if walking, which way he was walking. All of those things must have been made plain to the jury by the evidence; and we may fairly assume that they were fully considered by them in answer to the first question submitted. The sole purpose of the seventh question was to have the jury determine the distance the car was from the child, when he came within the driver's range of vision, had he been in the exercise of ordinary care in keeping a lookout. Having determined that the child was within such range of vision, when the car was 90 feet from him, it may fairly be presumed that he continued within such range of vision during the whole of the time the car was passing over that distance; so that, for the whole of that distance, the driver could have seen the child, had he kept a vigilant lookout. The eighth finding is to the effect that the child suddenly started from the place where he was first seen by the driver, and ran towards the horses and the car. As indicated, the jury nowhere found that the driver actually saw the child. when the car was 90 feet from him, but simply that at that time he either did see him or could have seen him. If he did see him at that time, and at or near the edge of Clybourn street, and then, or soon after, saw him suddenly start and |