Lxoisr, J.
We think there is sufficient evidence in the case to support findings by the jury that the plaintiff was in the service of the defendant company when injured; that the pile-driver was in a dangerous condition at that time, and had been so to the knowledge of Loomis, the foreman, long enough for him to have had it repaired before the accident; and that the plaintiff was not guilty of any negligence contributing to cause the injury.
The evidence upon all of these propositions is conflicting, and it was peculiarly the province of the jury to determine, as to each, which way it preponderated. In returning a general verdict for the plaintiff, the jury necessarily found such propositions proved. Because there is evidence to support them, so far as the judgment rests upon them we cannot disturb it for defect of proof.
This brings us to consider the various rulings and proceedings upon which error is assigned:
1. A special verdict was demanded at the proper time on behalf of the defendant. Regularly, it thereupon became the duty of the court to submit to the jury questions of fact in writing, covering all of the material issues in the case upon which there was any conflict of evidence. R. S., 760, sec. 2858; Hutchinson v. Railway Co., 41 Wis., 541. The court .thus submitted a single question, to wit, whether the plaintiff, when injured, was in the service of defendant, and failed to [379]*379submit specially other material controverted questions of fact in issue in the case.
Counsel for defendant objected generally to the question submitted, and to a portion of the charge of the court. But no specific objection was made or exception taken to the failure of the court to submit questions covering all of the issues. The court attempted to comply with the statute. The objection only informed the court that counsel thought the question submitted an improper one. No suggestion was made that counsel thought or desired that other questions should be submitted. All other issues were in fact submitted to the jury in the general charge, and we are unable to discover any erroneous statement of the law therein.
It seems to us that under such circumstances it was the duty of counsel then and there to make the specific objection that the question submitted was not the only one in issue, and that they desired a special submission of other issues. Bailing to do so, but standing by during the whole proceeding without objection or exception reaching to the irregularity, we think, and so hold, that they waived the irregularity, and cannot afterwards be heard to complain of it. Any other rule would or might render the statute giving the right to a special verdict an instrument of wrong and injustice.
2. The plaintiff received the injuries of which he complains, before the enactment of chapter 173, Laws of 1875; hence, the question whether such a case is within the provisions of that act, is not involved. The right to maintain the action depends entirely upon common-law principles.
The principles which underlie this action are thus stated in Brabbits v. Railway Co., 38 Wis., 289: “ It is now too well settled to admit of controversy, that a master is not liable to his servant for injuries caused by the negligence of a fellow servant in the same general employment or business. It is just as well settled that, under certain circumstances, the whole power and authority of the master is vested in an employee [380]*380or servant, in which, case the negligence of such employee is the negligence of the master. This occurs most frequently when the master is a corporation aggregate, and can only perform its functions by agents or servants.
It is a verity in this case, made so by the special finding of the jury, that the plaintiff, when injured, was in the service of the defendant company. The evidence which established this fact, applies equally to Loomis, the foreman. The evidence is undisputed that Loomis was authorized by the company to employ men to work on the pile-driver, and to discharge them. It was also his duty to have the pile-driver repaired when any portion of it was out of repair or unsafe. This power and duty manifestly existed while he and the plaintiff were doing Lawler’s work. Lawler testified, in substance, that had either proved unsatisfactory he would have reported them to the company to be taken away; and Loomis testified that, when doing Lawler’s work, he was left on the machine as foreman; and that, although he received his instructions from Lawler, he had the management of it without interference from any one.
The above facts are mentioned for the purpose of pointing out the distinction between this case and the case of Rourke v. The White Moss Colliery Co., 1 L. R., C. P. Div., 556, to which attention was called in the opinion on the former appeal.
The facts in that case are thus stated by the Lord Chief Justice ColeRidge: “The defendants are the proprietors of a coal mine, and had been sinking a shaft themselves; but ultimately they entered into a contract with one Whittle to continue the work. The plaintiff, who up to that time had been employed by the defendants, then became the servant of Whittle, and was paid wages by him. The injury sustained by the plaintiff arose from the negligence of one Lawrence, an engineer appointed by the defendants to work a steam engine, which, under the contract with Whittle, was provided by the [381]*381defendants to facilitate tlie work. Lawrence, though employed and paid by the defendants, was with the engine placed under the sole orders and control of "Whittle.” The negligence which cause the injury was that Lawrence fell asleep at his post.
The only question in the case was, whether Lawrence was the servant of Whittle; and it was held that in the matter of operating the engine he was; and hence, being a fellow servant with the plaintiff, there could be no recovery for the injury caused by his negligence. It is not claimed that the engine was in an unsafe condition.
In the present ease, had Loomis and the plaintiff both been the servants of Lawler, had the pile-driver been in proper condition, and had the plaintiff been injured by the negli-' gence of Loomis in operating it, we should have a case more nearly like Rourke v. The Colliery Co. It seems to us that this case in its essential particulars is like the case of Brcibbits v. The Railway Co., supra, and should be ruled by it. It was a duty which the defendant owed the plaintiff, to keep the pile-driver in proper repair. The defendant entrusted that duty to Loomis. By the rule established in that case, the negligence of Loomis in that behalf-was the negligence of the defendant, for the consequences of which it is liable to respond in damages.
3. The learned circuit judge denied the motion for a new trial, but stated that he thought the damages assessed by the jury excessive; and he declined to sign judgment for the sum so assessed until the plaintiff stipulated to discharge the judgment if the defendant should, within sixty days after the judgment should be signed, pay thereon the sum of $3,000, together with the costs.
If the trial court is of the opinion .that the jury in a cause have assessed the damages at too large a sum, and yet thinks they have not been influenced by prejudice, passion or bias, a new trial may be granted, unless the plaintiff will remit a [382]*382specified portion of the damages so assessed, and denied if he does remit the same.
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Lxoisr, J.
We think there is sufficient evidence in the case to support findings by the jury that the plaintiff was in the service of the defendant company when injured; that the pile-driver was in a dangerous condition at that time, and had been so to the knowledge of Loomis, the foreman, long enough for him to have had it repaired before the accident; and that the plaintiff was not guilty of any negligence contributing to cause the injury.
The evidence upon all of these propositions is conflicting, and it was peculiarly the province of the jury to determine, as to each, which way it preponderated. In returning a general verdict for the plaintiff, the jury necessarily found such propositions proved. Because there is evidence to support them, so far as the judgment rests upon them we cannot disturb it for defect of proof.
This brings us to consider the various rulings and proceedings upon which error is assigned:
1. A special verdict was demanded at the proper time on behalf of the defendant. Regularly, it thereupon became the duty of the court to submit to the jury questions of fact in writing, covering all of the material issues in the case upon which there was any conflict of evidence. R. S., 760, sec. 2858; Hutchinson v. Railway Co., 41 Wis., 541. The court .thus submitted a single question, to wit, whether the plaintiff, when injured, was in the service of defendant, and failed to [379]*379submit specially other material controverted questions of fact in issue in the case.
Counsel for defendant objected generally to the question submitted, and to a portion of the charge of the court. But no specific objection was made or exception taken to the failure of the court to submit questions covering all of the issues. The court attempted to comply with the statute. The objection only informed the court that counsel thought the question submitted an improper one. No suggestion was made that counsel thought or desired that other questions should be submitted. All other issues were in fact submitted to the jury in the general charge, and we are unable to discover any erroneous statement of the law therein.
It seems to us that under such circumstances it was the duty of counsel then and there to make the specific objection that the question submitted was not the only one in issue, and that they desired a special submission of other issues. Bailing to do so, but standing by during the whole proceeding without objection or exception reaching to the irregularity, we think, and so hold, that they waived the irregularity, and cannot afterwards be heard to complain of it. Any other rule would or might render the statute giving the right to a special verdict an instrument of wrong and injustice.
2. The plaintiff received the injuries of which he complains, before the enactment of chapter 173, Laws of 1875; hence, the question whether such a case is within the provisions of that act, is not involved. The right to maintain the action depends entirely upon common-law principles.
The principles which underlie this action are thus stated in Brabbits v. Railway Co., 38 Wis., 289: “ It is now too well settled to admit of controversy, that a master is not liable to his servant for injuries caused by the negligence of a fellow servant in the same general employment or business. It is just as well settled that, under certain circumstances, the whole power and authority of the master is vested in an employee [380]*380or servant, in which, case the negligence of such employee is the negligence of the master. This occurs most frequently when the master is a corporation aggregate, and can only perform its functions by agents or servants.
It is a verity in this case, made so by the special finding of the jury, that the plaintiff, when injured, was in the service of the defendant company. The evidence which established this fact, applies equally to Loomis, the foreman. The evidence is undisputed that Loomis was authorized by the company to employ men to work on the pile-driver, and to discharge them. It was also his duty to have the pile-driver repaired when any portion of it was out of repair or unsafe. This power and duty manifestly existed while he and the plaintiff were doing Lawler’s work. Lawler testified, in substance, that had either proved unsatisfactory he would have reported them to the company to be taken away; and Loomis testified that, when doing Lawler’s work, he was left on the machine as foreman; and that, although he received his instructions from Lawler, he had the management of it without interference from any one.
The above facts are mentioned for the purpose of pointing out the distinction between this case and the case of Rourke v. The White Moss Colliery Co., 1 L. R., C. P. Div., 556, to which attention was called in the opinion on the former appeal.
The facts in that case are thus stated by the Lord Chief Justice ColeRidge: “The defendants are the proprietors of a coal mine, and had been sinking a shaft themselves; but ultimately they entered into a contract with one Whittle to continue the work. The plaintiff, who up to that time had been employed by the defendants, then became the servant of Whittle, and was paid wages by him. The injury sustained by the plaintiff arose from the negligence of one Lawrence, an engineer appointed by the defendants to work a steam engine, which, under the contract with Whittle, was provided by the [381]*381defendants to facilitate tlie work. Lawrence, though employed and paid by the defendants, was with the engine placed under the sole orders and control of "Whittle.” The negligence which cause the injury was that Lawrence fell asleep at his post.
The only question in the case was, whether Lawrence was the servant of Whittle; and it was held that in the matter of operating the engine he was; and hence, being a fellow servant with the plaintiff, there could be no recovery for the injury caused by his negligence. It is not claimed that the engine was in an unsafe condition.
In the present ease, had Loomis and the plaintiff both been the servants of Lawler, had the pile-driver been in proper condition, and had the plaintiff been injured by the negli-' gence of Loomis in operating it, we should have a case more nearly like Rourke v. The Colliery Co. It seems to us that this case in its essential particulars is like the case of Brcibbits v. The Railway Co., supra, and should be ruled by it. It was a duty which the defendant owed the plaintiff, to keep the pile-driver in proper repair. The defendant entrusted that duty to Loomis. By the rule established in that case, the negligence of Loomis in that behalf-was the negligence of the defendant, for the consequences of which it is liable to respond in damages.
3. The learned circuit judge denied the motion for a new trial, but stated that he thought the damages assessed by the jury excessive; and he declined to sign judgment for the sum so assessed until the plaintiff stipulated to discharge the judgment if the defendant should, within sixty days after the judgment should be signed, pay thereon the sum of $3,000, together with the costs.
If the trial court is of the opinion .that the jury in a cause have assessed the damages at too large a sum, and yet thinks they have not been influenced by prejudice, passion or bias, a new trial may be granted, unless the plaintiff will remit a [382]*382specified portion of the damages so assessed, and denied if he does remit the same. But if the court thinks that the excessive award of damages was the result of such improper influences, and not merely an error of fair, impartial judgment, the verdict should he set aside absolutely, and a new trial granted. Manifestly, in such a case, the vicious influences which prompted an excessive award poisons the whole verdict, and can only be counteracted by setting the verdict aside, and sending the case to an impartial jury for trial.
But we are aware of no law or rule of practice which authorizes the court to impose the terms here imposed as a condition precedent to signing judgment. The court may grant or refuse a new trial, or, in a proper case, may grant a new trial nisi/ but should do one thing or the other. It should not, as was done in this case, require the prevailing party to remit a portion of the damage awarded, and then deprive the other party of the benefit of the reduction unless he submits to onerous terms. Had this defendant paid the $3,000 and costs, and taken a discharge of the judgment, probably it would thereby have lost the right to have the case reviewed by this court on appeal.
It was argued that because the circuit court thought the damages awarded by the jury were excessive, this court must so regard them. There might be more force in the argument if the record disclosed whether the court below thought the assessment was the result of passion or prejudice, or merely an error of fair and impartial judgment. The fact that judgment was rendered for the whole sum awarded tends to show that the court took the latter view, because, had it discovered evidences of vicious influences in the verdict, undoubtedly it would have set it aside at once. All the reasonable probabilities are that the court was of the opinion that the jury were moved by no wrong influences, but that they dispensed damages too liberally.
But, however that may be, we are clear that this court must [383]*383consider the question whether the damages are excessive as an original question, uncontrolled by the opinion of the learned circuit judge.
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.
The plaintiff is a laborer, and when injured was thirty years of age and was earning two dollars per day. The injury has resulted in materially and permanently impairing the use of his right hand and his ability to earn a livelihood. In such cases the courts will very seldom disturb the award of damages— perhaps never unless it is manifest that the award is grossly excessive. Duffy v. Railway Co., 34 Wis., 188, and cases cited. The subject is quite fully considered in the latter case, and it is unnecessary to repeat the discussion here.
Considering the age and business of the plaintiff, his previous ability to earn money by his labor, the serious nature of the injury — the permanent disablement of his right hand,— and the pain and suffering he endured, we are constrained to say, as was said in Karasich v. Hasbrouck, supra, that “ although it must be conceded that the jury dispensed damages with a liberal hand, yet we fail to find in their verdict such evidences of partiality, passion or improper bias or prejudice, as will authorize us to interfere and set the verdict aside as excessive.” p. 577.
The foregoing observations seem to cover the whole case, and lead to an affirmance of the judgment.
By the Court. — J udgment affirmed.