LyoN, J.
The determination of three questions will dispose of all the errors alleged as grounds for a reversal of the judgment.
1. Did the circuit court err in refusing to submit to the jury the questions, or either of them, proposed on behalf of the defendant? The substance of the first of these questions, “Was the brake on this car set at the time of the accident? ” was submitted to the jury as question numbered 8, and was answered in the negative. The second question, “Was it plaintiff’s duty, according to the custom of the railroad yard, to look out for himself while working on the brake? ” was answered in the affirmative by the undisputed evidence, and there was no necessity for submitting it to the jury. Hutchinson v. Railway Co., 41 Wis., 541; McNarra v. Railway [425]*425Co., id., 69; Williams v. Porter, id., 422; Ward v. Busack, 46 Wis., 407. It seems proper to remark here that, notwithstanding the dissent in the latter case from this proposition by the late chief justice, it must be deemed settled that it is unnecessary to submit a question of fact to the jury when the fact itself is established by undisputed evidence. When so established the fact is as much a verity in the case as though it were admitted by the pleadings. It would be absurd to submit a question of fact to the jury when there is no question that the fact exists.
We understand, from an examination of the testimony, and from the argument of the learned counsel of the defendant, that the custom sought to be proved is, that, in switching cars in the depot yard, it is not the duty of the railway company to have a brakeman or other person upon each train of cars in motion, or upon each car which is being moved separately, to give warning to the men at work in the yard of approaching danger; but that a car may be sent along any of the tracks, attached to or disconnected from a locomotive, as the exigencies of the business mayrequire, without any one upon it; and. in such case the men employed in the yard must look out for themselves. That is to say, it is not per se negligence of the company or its employees thus to move a car in its yard, unattended, and the peril of injury from a car so moving is, by the custom, one of the perils of the service, the risk of which is upon the servant. This custom was fully proved on the trial.
But the custom has little significance in this case, for the reason that there was a brakeman on the car, who saw the .plaintiff at work on the track upon which the car was moving, a sufficient time before the'injury to have stopped the car before it reached the plaintiff, or to have warned him of its approach. The custom does not relieve the defendant of liability for the negligence of its other employees. It did not [426]*426relieve the brakeman of the duty of stopping the car, or warning the plaintiff of its approach, or cast upon the plaintiff the risk of his failure to do so. No such custom wa,s referred to in the question proposed, and none was proved. On the contrary, the evidence tends to show that the brakeman should have given the trackman some notice or warning of the approach of the car. On grounds of public policy, a custom which would permit the brakeman to let the car run upon the trackmen when he knew their peril and could easily avoid it, could hardly be sustained as a valid custom.
The third, fourth and fifth questions proposed on behalf of the defendant were substantially submitted to and answered by the jury, as will be seen by referring to questions 1, 2, 3, 4, 11 and 12, so submitted, and the answers thereto, returned by the jury.
2. Did the court err in refusing to give the instruction asked on behalf of the defendant, which is as follows: “ 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? ” As a statement of a general rule of evidence the instruction .is correct. It was applied by this court in Ralph v. Railway Co., 32 Wis., 177. Tet it does not follow that the refusal to give it was error. It is seldom error to refuse to give an instruction which-is only a statement of an abstract rule of law. It might be error to give such instruction unless it is so drawn as to be applicable to the case on trial. This instruction is not so drawn. Two witnesses did not testify positively that the brakeman called out. The brakeman himself so testified, and another witness testified' that he heard some one call out, but did not know' who it was. Neither was the negative testimony confined to four witnesses. Besides, the instruction ignores all modifying circumstances; as, for example, the relative means or opportunity of the dif[427]*427ferent’witnesses to bear the alleged warning. See Urbanek v. Railway Co., 47 Wis., 59. We do not think it was error to refuse the instruction.
3. Are the damages awarded by the jury so excessive as to justify the interference of the court? The rule by which this question must be determined is thus stated in Schultz v. Railway Co., 48 Wis., 375: “The fact that larger damages are awarded than the court would give, were it to assess them, is not of itself sufficient to justify a reversal of the judgment. Before the court can interfere, it must find in the verdict evidence of partiality, passion or improper bias or prejudice on the part of the jury. Karasich v. Hasbrouck, 28 Wis., 569, and cases cited.” Page 383.
The plaintiff in the present case is a laborer. At the time of the accident he was about thirty-four years of age, and was a strong, healthy man. He has a wife and four young children. By reason of the injury his leg was amputated above the knee. At the time of the trial, nearly a year after he was injured, he was still unable to do any work. • lie testified (and is not disputed): “ I can’t do anything now. If I stand for any length of time, or sit, or keep my leg down, ... I always get dizzy in my head; also when I walk any distance. I was healthy and strong before this accident. I am not half so good now as I used to be.”
Were we to consider only the impaired ability of the plaintiff to earn a subsistence for himself and his family, we might possibly, with the aid of. life annuity tables, make a computation on the basis of his earnings before he was injured, which would approximate his damages in that particular. But there are other elements of compensatory damages in this and like cases, which cannot be thus approximated, and which must necessarily be fixed somewhat arbitrarily by the jury, in the exercise of a sound judgment. Among these are damages for physical pain and mental suffering. This plaintiff must go through life maimed, probably with impaired health, and disabled, [428]*428in part at least, if not wholly, from earning a subsistence for himself and his family. The mental agony which the ever-present consciousness of his sad condition must produce, is an element to be considered by the jury in awarding damages. Here there is no room for mere computation. 'The annuity tables furnish no aid, and the capacity of the plaintiff to earn money is of small significance.
It is unnecessary to review the cases on this subject. Many of them are cited in the briefs of the respective counsel. The facts of the various cases are so diverse that but little aid can be obtained by comparing one with another.
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LyoN, J.
The determination of three questions will dispose of all the errors alleged as grounds for a reversal of the judgment.
1. Did the circuit court err in refusing to submit to the jury the questions, or either of them, proposed on behalf of the defendant? The substance of the first of these questions, “Was the brake on this car set at the time of the accident? ” was submitted to the jury as question numbered 8, and was answered in the negative. The second question, “Was it plaintiff’s duty, according to the custom of the railroad yard, to look out for himself while working on the brake? ” was answered in the affirmative by the undisputed evidence, and there was no necessity for submitting it to the jury. Hutchinson v. Railway Co., 41 Wis., 541; McNarra v. Railway [425]*425Co., id., 69; Williams v. Porter, id., 422; Ward v. Busack, 46 Wis., 407. It seems proper to remark here that, notwithstanding the dissent in the latter case from this proposition by the late chief justice, it must be deemed settled that it is unnecessary to submit a question of fact to the jury when the fact itself is established by undisputed evidence. When so established the fact is as much a verity in the case as though it were admitted by the pleadings. It would be absurd to submit a question of fact to the jury when there is no question that the fact exists.
We understand, from an examination of the testimony, and from the argument of the learned counsel of the defendant, that the custom sought to be proved is, that, in switching cars in the depot yard, it is not the duty of the railway company to have a brakeman or other person upon each train of cars in motion, or upon each car which is being moved separately, to give warning to the men at work in the yard of approaching danger; but that a car may be sent along any of the tracks, attached to or disconnected from a locomotive, as the exigencies of the business mayrequire, without any one upon it; and. in such case the men employed in the yard must look out for themselves. That is to say, it is not per se negligence of the company or its employees thus to move a car in its yard, unattended, and the peril of injury from a car so moving is, by the custom, one of the perils of the service, the risk of which is upon the servant. This custom was fully proved on the trial.
But the custom has little significance in this case, for the reason that there was a brakeman on the car, who saw the .plaintiff at work on the track upon which the car was moving, a sufficient time before the'injury to have stopped the car before it reached the plaintiff, or to have warned him of its approach. The custom does not relieve the defendant of liability for the negligence of its other employees. It did not [426]*426relieve the brakeman of the duty of stopping the car, or warning the plaintiff of its approach, or cast upon the plaintiff the risk of his failure to do so. No such custom wa,s referred to in the question proposed, and none was proved. On the contrary, the evidence tends to show that the brakeman should have given the trackman some notice or warning of the approach of the car. On grounds of public policy, a custom which would permit the brakeman to let the car run upon the trackmen when he knew their peril and could easily avoid it, could hardly be sustained as a valid custom.
The third, fourth and fifth questions proposed on behalf of the defendant were substantially submitted to and answered by the jury, as will be seen by referring to questions 1, 2, 3, 4, 11 and 12, so submitted, and the answers thereto, returned by the jury.
2. Did the court err in refusing to give the instruction asked on behalf of the defendant, which is as follows: “ 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? ” As a statement of a general rule of evidence the instruction .is correct. It was applied by this court in Ralph v. Railway Co., 32 Wis., 177. Tet it does not follow that the refusal to give it was error. It is seldom error to refuse to give an instruction which-is only a statement of an abstract rule of law. It might be error to give such instruction unless it is so drawn as to be applicable to the case on trial. This instruction is not so drawn. Two witnesses did not testify positively that the brakeman called out. The brakeman himself so testified, and another witness testified' that he heard some one call out, but did not know' who it was. Neither was the negative testimony confined to four witnesses. Besides, the instruction ignores all modifying circumstances; as, for example, the relative means or opportunity of the dif[427]*427ferent’witnesses to bear the alleged warning. See Urbanek v. Railway Co., 47 Wis., 59. We do not think it was error to refuse the instruction.
3. Are the damages awarded by the jury so excessive as to justify the interference of the court? The rule by which this question must be determined is thus stated in Schultz v. Railway Co., 48 Wis., 375: “The fact that larger damages are awarded than the court would give, were it to assess them, is not of itself sufficient to justify a reversal of the judgment. Before the court can interfere, it must find in the verdict evidence of partiality, passion or improper bias or prejudice on the part of the jury. Karasich v. Hasbrouck, 28 Wis., 569, and cases cited.” Page 383.
The plaintiff in the present case is a laborer. At the time of the accident he was about thirty-four years of age, and was a strong, healthy man. He has a wife and four young children. By reason of the injury his leg was amputated above the knee. At the time of the trial, nearly a year after he was injured, he was still unable to do any work. • lie testified (and is not disputed): “ I can’t do anything now. If I stand for any length of time, or sit, or keep my leg down, ... I always get dizzy in my head; also when I walk any distance. I was healthy and strong before this accident. I am not half so good now as I used to be.”
Were we to consider only the impaired ability of the plaintiff to earn a subsistence for himself and his family, we might possibly, with the aid of. life annuity tables, make a computation on the basis of his earnings before he was injured, which would approximate his damages in that particular. But there are other elements of compensatory damages in this and like cases, which cannot be thus approximated, and which must necessarily be fixed somewhat arbitrarily by the jury, in the exercise of a sound judgment. Among these are damages for physical pain and mental suffering. This plaintiff must go through life maimed, probably with impaired health, and disabled, [428]*428in part at least, if not wholly, from earning a subsistence for himself and his family. The mental agony which the ever-present consciousness of his sad condition must produce, is an element to be considered by the jury in awarding damages. Here there is no room for mere computation. 'The annuity tables furnish no aid, and the capacity of the plaintiff to earn money is of small significance.
It is unnecessary to review the cases on this subject. Many of them are cited in the briefs of the respective counsel. The facts of the various cases are so diverse that but little aid can be obtained by comparing one with another. Compared with some of the cases, the damages awarded to this plaintiff might seem excessive; compared with others, the amount might seem reasonable. There is nothing in this record indicative of prejudice, passion or improper' bias on the part of the jury, unless it is evidenced by the award of $11,000 damages. Considering the age of the plaintiff, and his health and condition before and after he was injured; considering the pain and suffering, physical and mental, which he has endured and must continue to endure; considering, also, .that he is maimed and disabled for life, — who can say that an award of $11,000 damages is so grossly disproportioned to the injury as to show that the jury were influenced by improper feelings and motives? We confess that we should have been better satisfied with the verdict had the damages been assessed at a sum somewhat less; yet we cannot say that, under all of the circumstances, an honest and unbiased jury might not reasonably conclude that $11,000 would no more than compensate the plaintiff for his suffering and loss, present -and prospective, caused by the injury. See Karasich v. Hasbrouck, 28 Wis., 569; Duffy v. Railway Co., 34 Wis., 188, and cases cited.
The special verdict finds that the defendant’s brakeman was negligent in that he failed to give the plaintiff any warning of the approach of the car; that such negligence was the proximate cause of the injuries complained of; and that the plaintiff, [429]*429when injured, was exercising reasonable care. These findings are supported by the evidence, and they demonstrate the right of the plaintiff to recover under chapter 173, Laws of 1875, which was in force when the injuries were inflicted and when-the action was brought.
The judgment of the county court must be affirmed.
By the Court. — Judgment affirmed.