LyoN, J.
The record contains no bill of exceptions. The motion on behalf of the defendant company for judgment was based upon the minutes of 'the judge as well as upon the verdict. It is claimed for defendant that, in the absence of a bill of exceptions preserving the testimony, it must be presumed that the undisputed testimony, independently of the questions submitted to the jury, establishes the right of the defendant to a judgment. This proposition is based upon the familiar rule that error is never to be presumed, but to be available must always be made to appear affirmatively. The argument of the learned counsel for the plaintiff against this proposition is, in substance, that resort can only be had to the minutes of the court — that is, to what transpired on the trial — in motions for new trials made at the trial terms (E. S., 764, sec. 2878), and hence that a judg[146]*146ment cannot properly be rendered upon what appears only in the minutes of the court, and especially when the judgment contravenes the verdict of the jury. The question is an interesting one, and may become important in future cases, but the view we have taken of the verdict renders it unnecessary to determine it in the present case. We shall therefore consider the case upon the pleadings and verdict alone.
The answers to the fifth, eleventh, and twelfth questions acquit the plaintiff and his parents of any negligence which contributed to the injury complained of. It will be assumed, for the purposes of the case, that those questions were correctly answered, and that neither the plaintiff nor either of his parents are chargeable with negligence in that behalf. The answers to the first four and the seventh questions are to the effect that the defendant company is chargeable with negligence which caused the injury to the plaintiff. These, standing alone, would entitle the plaintiff to judgment, he and his parents being free from negligence in the premises. We are to determine how these findings of the defendant’s negligence are affected by the other findings of the jury, to wit, by the sixth, eighth, ninth, tenth, thirteenth, and fourteenth findings, and by the averments of the complaint to the effect that the place where the plaintiff was injured was the private grounds of the company, but that the plaint-tiff was lawfully on those grounds by the implied license and permission of the company.
The question of negligence is, or may be, a mixed question of law and fact. It may embrace the facts upon which the charge of negligence is predicated, and the conclusion of law to be deduced therefrom, as to whether such facts do or do not constitute negligence. In some cases the facts found lead irresistibly to the conclusion of negligence or the absence of it. In such cases the inference of negligence or the want of it is purely a conclusion of law. Nicks v. Town [147]*147of Marshall, 24 Wis., 139, and Delaney v. M. & St. P. R'y Co., 33 Wis., 67, belong to this class. In other cases the facts found may leave the inference of negligence or no negligence in doubt. In such cases the question of negligence is for the jury. But it is so because other facts, not found, are necessary to be considered and determined before the inference can properly be drawn. Of this class are the cases of Sutton v. Town of Wauwatosa, 29 Wis., 21, and Kenworthy v. Ironton, 41 Wis., 647. There are numerous other cases determined by this court which belong to one or the other of these classes, and which illustrate the distinction between them.
If the findings of fact last above specified, and the aver-ments of the complaint, conclusively show that the defendant was free from any negligence which caused the injury complained of, this case belongs to the class first above mentioned. In that event the findings in the verdict that the defendant was guilty of such negligence amount only to a conclusion of law, and are overcome by the specific findings of fact -which demonstrate that the conclusion is erroneous. This is on the same principle that a general verdict must yield to special findings inconsistent with it. E. S., 760, sec. 2860. But if the case is within the other class above mentioned, the findings that the defendant was negligent are something more than mere conclusions of law. In that event they embrace and include the element of fact not specially found, as well as of law, and cannot properly be disturbed. So the case turns upon the question, To which of the above classes does it belong? If to the first, the judgment is right and must be affirmed; if to the other class, it is erroneous and must be reversed.
The findings that the defendant was negligent in the premises are predicated entirely upon its supposed duty to give some notice, signal, or warning, other than was given, that it was about to run its locomotive upon the side-track [148]*148and attach it to the train of cars standing thereon. The verdict does not inform us what further notice, signal, or warning ought to have been given. This is, indisputably, the negligence imputed in the seventh finding, as well as in the first four findings, because no other negligence in making the coupling is charged in the complaint. We may assume that any fact stated in the complaint, but not specially found by the jury, was proved on the trial, but it cannot be presumed that facts not so stated or found were proved. Farrell v. Drees, 41 Wis., 186. Should it be claimed the complaint charges that the locomotive was propelled too rapidly and violently against the train of cars standing upon the side track, while we do not think it so charges, we are of the opinion that the charge, if made, is negatived by the tenth finding, that the rear car, which ran over the plaintiff, was only moved from three to ten feet when the coupling was made.
The pleadings and verdict establish these facts: (1) The plaintiff was on the private grounds of the company when injured, and, at most, was a mere licensee on such grounds. (2) He is a child of tender years; the train-men had no' reason to think such a child would be on the track in the rear of the train, and reasonable care and prudence did not require them to anticipate, as a result of coupling the cars, that such a child would be injured. (3) The work on the side track at the time of the injury (which includes, of course, the running of the locomotive upon it, the signals, and the mode of coupling) was done in the same manner in which it had been done for a long time before the accident. (4) The engine whistle was sounded as the engine was moving west on the main track to go-on the switch. (5) The engine bell was rung while the engine was backing in on the side track, and while the couplings were being made.
As before observed, the only negligence imputed to the defendant is that it failed to give proper notice, signal or [149]*149warning while running its engine on the side track and making the couplings to the train standing thereon. The precise question to be determined is, therefore: Under the circumstances of the case, were or were not the signals of blowing the whistle and ringing the bell, as the same were done, all the signals, notice, or warnings which the defendant was required to give that its locomotive was about to be run upon the side track and the couplings were about to be made? The jury have answered the question in the negative. Is the answer correct or erroneous? The plaintiff was upon the private grounds and track of the defendant for his own purposes.
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LyoN, J.
The record contains no bill of exceptions. The motion on behalf of the defendant company for judgment was based upon the minutes of 'the judge as well as upon the verdict. It is claimed for defendant that, in the absence of a bill of exceptions preserving the testimony, it must be presumed that the undisputed testimony, independently of the questions submitted to the jury, establishes the right of the defendant to a judgment. This proposition is based upon the familiar rule that error is never to be presumed, but to be available must always be made to appear affirmatively. The argument of the learned counsel for the plaintiff against this proposition is, in substance, that resort can only be had to the minutes of the court — that is, to what transpired on the trial — in motions for new trials made at the trial terms (E. S., 764, sec. 2878), and hence that a judg[146]*146ment cannot properly be rendered upon what appears only in the minutes of the court, and especially when the judgment contravenes the verdict of the jury. The question is an interesting one, and may become important in future cases, but the view we have taken of the verdict renders it unnecessary to determine it in the present case. We shall therefore consider the case upon the pleadings and verdict alone.
The answers to the fifth, eleventh, and twelfth questions acquit the plaintiff and his parents of any negligence which contributed to the injury complained of. It will be assumed, for the purposes of the case, that those questions were correctly answered, and that neither the plaintiff nor either of his parents are chargeable with negligence in that behalf. The answers to the first four and the seventh questions are to the effect that the defendant company is chargeable with negligence which caused the injury to the plaintiff. These, standing alone, would entitle the plaintiff to judgment, he and his parents being free from negligence in the premises. We are to determine how these findings of the defendant’s negligence are affected by the other findings of the jury, to wit, by the sixth, eighth, ninth, tenth, thirteenth, and fourteenth findings, and by the averments of the complaint to the effect that the place where the plaintiff was injured was the private grounds of the company, but that the plaint-tiff was lawfully on those grounds by the implied license and permission of the company.
The question of negligence is, or may be, a mixed question of law and fact. It may embrace the facts upon which the charge of negligence is predicated, and the conclusion of law to be deduced therefrom, as to whether such facts do or do not constitute negligence. In some cases the facts found lead irresistibly to the conclusion of negligence or the absence of it. In such cases the inference of negligence or the want of it is purely a conclusion of law. Nicks v. Town [147]*147of Marshall, 24 Wis., 139, and Delaney v. M. & St. P. R'y Co., 33 Wis., 67, belong to this class. In other cases the facts found may leave the inference of negligence or no negligence in doubt. In such cases the question of negligence is for the jury. But it is so because other facts, not found, are necessary to be considered and determined before the inference can properly be drawn. Of this class are the cases of Sutton v. Town of Wauwatosa, 29 Wis., 21, and Kenworthy v. Ironton, 41 Wis., 647. There are numerous other cases determined by this court which belong to one or the other of these classes, and which illustrate the distinction between them.
If the findings of fact last above specified, and the aver-ments of the complaint, conclusively show that the defendant was free from any negligence which caused the injury complained of, this case belongs to the class first above mentioned. In that event the findings in the verdict that the defendant was guilty of such negligence amount only to a conclusion of law, and are overcome by the specific findings of fact -which demonstrate that the conclusion is erroneous. This is on the same principle that a general verdict must yield to special findings inconsistent with it. E. S., 760, sec. 2860. But if the case is within the other class above mentioned, the findings that the defendant was negligent are something more than mere conclusions of law. In that event they embrace and include the element of fact not specially found, as well as of law, and cannot properly be disturbed. So the case turns upon the question, To which of the above classes does it belong? If to the first, the judgment is right and must be affirmed; if to the other class, it is erroneous and must be reversed.
The findings that the defendant was negligent in the premises are predicated entirely upon its supposed duty to give some notice, signal, or warning, other than was given, that it was about to run its locomotive upon the side-track [148]*148and attach it to the train of cars standing thereon. The verdict does not inform us what further notice, signal, or warning ought to have been given. This is, indisputably, the negligence imputed in the seventh finding, as well as in the first four findings, because no other negligence in making the coupling is charged in the complaint. We may assume that any fact stated in the complaint, but not specially found by the jury, was proved on the trial, but it cannot be presumed that facts not so stated or found were proved. Farrell v. Drees, 41 Wis., 186. Should it be claimed the complaint charges that the locomotive was propelled too rapidly and violently against the train of cars standing upon the side track, while we do not think it so charges, we are of the opinion that the charge, if made, is negatived by the tenth finding, that the rear car, which ran over the plaintiff, was only moved from three to ten feet when the coupling was made.
The pleadings and verdict establish these facts: (1) The plaintiff was on the private grounds of the company when injured, and, at most, was a mere licensee on such grounds. (2) He is a child of tender years; the train-men had no' reason to think such a child would be on the track in the rear of the train, and reasonable care and prudence did not require them to anticipate, as a result of coupling the cars, that such a child would be injured. (3) The work on the side track at the time of the injury (which includes, of course, the running of the locomotive upon it, the signals, and the mode of coupling) was done in the same manner in which it had been done for a long time before the accident. (4) The engine whistle was sounded as the engine was moving west on the main track to go-on the switch. (5) The engine bell was rung while the engine was backing in on the side track, and while the couplings were being made.
As before observed, the only negligence imputed to the defendant is that it failed to give proper notice, signal or [149]*149warning while running its engine on the side track and making the couplings to the train standing thereon. The precise question to be determined is, therefore: Under the circumstances of the case, were or were not the signals of blowing the whistle and ringing the bell, as the same were done, all the signals, notice, or warnings which the defendant was required to give that its locomotive was about to be run upon the side track and the couplings were about to be made? The jury have answered the question in the negative. Is the answer correct or erroneous? The plaintiff was upon the private grounds and track of the defendant for his own purposes. He was lawfully there, however, by virtue of an implied- license given by the defendant to the whole public, including the plaintiff. Being lawfully there, the defendant owed him the duty of exercising ordinary care to avoid injuring him while there. But the requirements of ordinary care are, or in some cases may be, fulfilled in a case like this by the employment of far less precautions to avoid accident than would be required were the locus in quo a public highway usually thronged with people. Such is the doctrine of Davis v. C. & N. W. R'y Co., 58 Wis., 646. It is said in the opinion by Mr. Justice Taylojr in that case: “It may be that the company is not compelled to use the highest degree of care to protect those so using its track, and that if it uses its road in the ordinary way, and an injury results, it may not be liable.”
The question of the duty of a railway company to a mere licensee upon its track, for his own pleasure or convenience, was elaborately and most ably discussed in that case; and numerous cases bearing upon it, both English and American, were cited by the learned counsel. Many of these are commented upon by Mr. Justice Tayloe. The rule appears to be established by those cases (and there seems to be little or no conflict of authority on the subject) that in a case like this, where a person who is a mere licensee upon the track of the [150]*150railway is injured as was this plaintiff, if his presence there is unknown to, and unexpected by, the servants of the railway company operating the train, and would not reasonably be anticipated by them; if the usual signals of ringing the bell and sounding the whistle of the locomotive were given — the former being continued to the time the couplings were made; and if the train is being operated and the business conducted, when the accident happens, in the usual manner,— the requirements of ordinary care and diligence are fully complied with, and the railway company is not required to give any other notice, signal, or warning of the movement of the train or coupling of the cars. The cases from which this rule is deduced are cited in the brief of counsel for the defendant in Davis v. R’y Co., supra. It is not deemed important or necessary to enlarge upon them here, after the very full discussion of the subject by Mr. Justice Tayloe in that case.
It follows from the foregoing propositions that the special findings of fact demonstrate that the defendant.is not chargeable with negligence in the premises. This eliminates from the finding that it was negligent, every element of fact, and leaves it a mere naked conclusion of l'aw, entirely unsupported by the facts. Being so, we have already seen that the finding of negligence, as well as the general verdict for the plaintiff, must yield to the special findings of fact, and can have no weight in determining the judgment. Because the special findings of fact establish conclusively that the plaintiff was not injured by means of any default or negligence of the defendant company, the county court properly gave judgment for the defendant upon the verdict.
By the Court.— Judgment affirmed.