This is an appeal from a judgment entered upon a special verdict in the district court of Grant county in the sixth judicial district, and from an order denying defendant’s and appellant’s motion for judgment notwithstanding the verdict or for a new trial.
The grounds of the motion are, • in substance, that the plaintiff, Edmund Dubs, was a trespasser on the right of way; that the evidence of plaintiff’s own witnesses shows that the boy was not discovered upon the track in a place of danger until the train was within 40 feet of him and that after such discovery every precaution was taken to *168avoid injury; and that there is no negligence shown by the evidence on the part of the defendant company but that, on the contrary, the evidence shows that the plaintiff was guilty of contributory negligence.
This case was formerly before this court on appeal and is reported in Dubs v. Northern P. R. Co. 42 N. D. 124, 171 N. W. 888. The facts are fully stated in the former opinion and they are not substantially different in the case at bar. At the trial of the case now before us, the plaintiff called as his witness one IT. LL Warren, the engineer of the defendant’s train which ran over the plaintiff, and elicited from this witness in his own behalf testimony with reference to the accident. We do not deem it necessary to set out the facts in full, but shall refer to them merely as occasion requires in the course of the opinion.
This is a tort action. It is founded upon the theory that the defendant owed a legal duty to the plaintiff, Avhich it failed, without lawful excuse, to perform; and that, because of such failure, the plaintiff suffered injury for Avhich defendant should respond in damages. There can, of course, be no actionable negligence unless there be a failure to perform a legal duty owing to the injured party.
The plaintiff was injured while a trespasser upon the tracks of the defendant near Noav Leipzig in Grant county, this state. In the former opinion in this case, this court-, speaking through its present Chief Justice, defined the legal duty which the defendant- railroad company OAved the plaintiff trespasser as follows:
“It was the dirty of the defendant to exercise ordinary care to avoid injury to the boy after discovering him to be in a place of peril. Failure to do so was Avilful negligence. . . .
“The fact that the boy Avas a trespasser on the tracks of the .defendant railway, and that he was guilty of contributory negligence, did not absolve the defendant from its performance of this duty. It if failed to perform its duty in this regard, its negligence is deemed the proximate cause of the injury, Avhile the boy’s negligence is deemed the remote cause of it.” (Italics are ours).
This court is, therefore, committed to the doctrine, applied as measuring the duty of landoAvners to trespassing human beings in O’Leary v. Brooks Elevator Co. 7 N. D. 554, 41 L.R.A. 677, 75 N. W. 919, and likewise held to define the duty of railroad companies in *169cases of trespassing stock in numerous eases since, see Corbett v. Great Northern R. Co. 28 N. D. 136, 148 N. W. 4, that tbe company owes no duty to tbe trespasser 'until his presence in a place of danger becomes known, and that thereafter the measure of its duty is the exercise of ordinary care to avoid injuring him. Whether, and, if so, under what circumstances and to what extent this somewhat severe doctrine should be relaxed in cases of injury to children, who, because of immaturity, are wholly unconscious of the danger of being upon railroad tracks, it is not necessary now to decide, as the plaintiff testified that he knew and understood that one remaining upon railroad tracks was in a place of danger and might be injured by passing trains.
After this court, on the first appeal, had detailed the facts and commented upon special interrogatories answered in connection with a general verdict for the plaintiff, the court say:
“There is, however, no special finding of the jury that the engineer did in fact see the hoy in time, after such discovery, to avoid the injuries. It is clear, therefore, under the evidence, that the doctrine of last clear chance applied, if the engineer saw the boy at or about the time he first saw the dog.”
The testimony in that trial as in this showed that the engineer first saw the dog 200 or 300 feet away.- It was claimed that the dog obstructed the view so that the engineer did not see the boy until the dog jumped off the track. The evidence then, as now, showed, or tended to show, that the engineer did not in fact see the boy until about 10 feet away from him and that, immediately upon seeing him, the brakes were put on and a good stop had, although not in time to avoid injury. At the trial this time, the engineer testified specifically, as a witness for the plaintiff, that he did not see the boy until about 40 feet from him, when the dog jumped up and left the track and that, upon seeing the boy, he immediately put on the brakes, sanded the: rails and a good stop was obtained, some of the passengers being thrown from their seats.
The court, in the former opinion, concluded by saying:
“The majority also deem it proper to suggest that, in the event a new trial is ordered and had, special interrogatories ought to be *170submitted to the, jury upon the controlling questions of fact arising under the last clear chance doctrine.”
From the opinion on the former appeal, it is clear that this court felt that in order to support a verdict against the defendant, the jury would have to find, as a fact, that the engineer “did in fact see the boy in time, after such discovery, to avoid the injuries;” and that upon this question the court was of the opinion that a special interrogatory, in the event of a new trial, should be submitted to the jury, in order to determine whether the defendant was guilty of actionable negligence. According to the holding on the first appeal, the jury would have to find, as a fact, when the engineer first discovered the plaintiff upon the track in a place of peril and then to determine, as a fact, that after such discovery the defendant negligently failed to use ordinary care in avoiding injury to the plaintiff. This court refused to hold, altho such a finding was necessary in order to justify the general verdict in that case, that the jury found, or intended to find, that the engineer saw the boy in time to‘avoid injuring him, but negligently failed to stop the train in time. Accordingly, a special finding on this point was suggested by this court.
Twenty-three interrogatories were submitted to the jury on the trial of the instant case, but no question required them to find when or at how distant a point the engineer discovered the plaintiff upon the 'trade, or whether he discovered him in time to avoid injuring him in the exercise of ordinary care. The following interrogatories, and no others, bearing upon this question, were submitted:
(8.) “Did the engineer of the train which ran over the plaintiff Edmund Dubs, before running over the said Edmund Dubs, discover the said Edmund Dubs to be in a position of peril on the railroad track? A. Tes.”
(9.) “Did the said engineer, after discovering the said Edmund Dubs to be in a position of peril on the railroad track, fail to exercise ordinary care to avoid injuring him, the said Edmund Dubs ? A. Yes.”
It is contended by the respondent that the answers to the foregoing-interrogatories sufficiently find controlling questions of fact arising under the doctrine of last clear chance as directed in the former' opinion. In order to determine this question, it becomes necessary to. *171consider whether or not there is any evidence -in the record which will support the answer to question number nine. In the former opinion, this court said:
“’There is no dispute in the evidence that the brake appliances were in fine working order and that a fine emergency stop ivas accomplished' when some 30 to 35 feet away from the boy. ... It was so good, that passengers were thrown out of their seats. . . .
“Necessarily from the special findings made, the jury, pursuant to the instructions of the court in this regard, must have found, to support the general verdict rendered, that the engineer did see the boy about the time he first saiv the dog (about 200 or 300 feet away) and in time to have avoided the injuries sustained by the exercise of' ordinary care.”
The testimony at this trial is the same as to the precautions taken by the engineer and the train crew after the moment of time when the-engineer said he saw the boy on the track. On the former trial, and at this trial, there is not-a syllable in the record that indicates that any precaution was omitted or that the train crew failed to do anything-that should have been done in order to effect a speedy stop, after the-engineer saw the boy in a position of peril, namely, when the train was about 40 feet from the boy. If, therefore, in answering question number nine affirmatively, the jury found, or intended to find, as a fact that the engineer did see the boy before the train was within, approximately 40 feet of him, and when 200 or 300 feet away, it is doubtful if such a finding is supported by substantial evidence and can be sustained. The case, therefore, is in no better condition than when it was here before. In fact, it is perhaps less favorable to the plaintiff because we now have the clear and unequivocal testimony of his own witness, the engineer, that he did not see the boy until about 40 feet from him. In the former opinion this court said that while there was some evidence which might support a finding that the engineer did see the boy in time to avoid the injuries, the court nevertheless said it had a “doubt if the jury did in fact so find or had any intention of so doing.” Neither the evidence nor any finding in this case justifies a conclusion on this point different from that on the first appeal. If this eouid, in the former appeal, could not let the general verdict stand because the court doubted if the jury found or intended to find wilful *172negligence, the it did find in answer to a special interrogatory that the dog did not so obstruct the engineer’s view as to prevent his seeing the boy, it is difficult to see on what theory the verdict on this trial can be supported. The fact that certain special findings, upon immaterial matters, hereinafter referred to, were made by the jury, renders it even more doubtful than it was on the first trial whether the jury intended to find that the engineer saw the boy in time to avoid injuring him. Indeed, to sustain this judgment, we would, in effect, be required to say, although the jury does not say so, that the jury believed the engineer saw the boy two or three hundred feet away, but took no precaution whatever to stop the train and avoid running over him until within about 40 feet from the place where the boy was lying on the track. We are not disposed to say that this engineer wilfully managed his train in such a way as to inflict wanton injuries upon this plaintiff. It was upon this very point that this court in the first opinion suggested a special finding should be made by the jury. In view of this direction by this court on the first appeal, it is difficult to understand why a specific finding was not made on this controlling question. There is, therefore, no finding in the special verdict upon a material issue of fact. A special verdict must be “complete and consistent in and within itself.” It must find all facts essential to sustain or defeat the cause of action in order to bo sufficient to support a judgment. Clementson, Special Verdicts, 45. “Silence in respect to an essential fact not specially found or necessarily included in the verdict is equivalent to an express finding against such party.” Clementson, Special Verdicts, pp. 267, 268. Such a verdict is defective and the defect is not waived by failure to object to the questions submitted or to ask the submission of other questions. Jenewein v. Irving, 122 Wis. 228, 99 N. W. 346, 903; Clementson, Special Verdicts, p. 200. Defendant was not required to assume or anticipate that the jury would answer any question contrary to the evidence.
The answer to question number six of the special verdict found defendant guilty of want of ordinary care in running over the plaintiff and the answer to question number seven found that such want or ordinary care was the proximate cause of the injury. It is contended that these answers sufficiently establish defendant’s liability. Wc do not think so. Under the doctrine of liability adopted in the first opin*173ion in this case, defendant might be guilty of want of ordinary care in not seeing the plaintiff in time to stop the train, and yet not be liable. The test and the only test of liability in this case is: Did the defendant use ordinary care, not in maintaining a lookout for trespassers, but in avoiding injury to the plaintiff after discovering him in a position of peril? Under the circumstances and theory of liability here involved, these answers do not find ultimate facts sufficient to support a judgment for the plaintiff.
It is contended that all defects in the questions submitted were waived by defendant and York v. General Utility Corp. 44 N. D. 51, 116 N. W. 352, recently decided by this court, is cited. In that case the court says that counsel owe a duty to the trial court and cannot refuse assistance and permit error in order to take advantage thereof later. No general rule is there laid down that controls over the facts here.
In the case at bar, the parties seem to have agreed that there should be a special verdict and the form of the questions seems to have been agreed upon by counsel as well, except three or four questions which need not be considered. AVe think the correct and reasonable rule is that a party does not waive the right to challenge the sufficiency of the special verdict to support a judgment on the ground that a question upon a material fact was not submitted when the burden of proving such fact, whether it be as a part of the cause of action or defense, is upon his adversary. A broader rule would impose on one party to the lawsuit an affirmative duty aS to the manner of conducting the litigation on the other side. The burden of proving when the engineer first saw the boy and that, after seeing him, he failed to use ordinai*y care to avoid the injury, rested on plaintiff and under the circumstances the defendant should not be held to have waived the right to challenge the sufficiency of the findings upon facts material to the plaintiff's cause of action. The situation is analogous to that arising when the special verdict fails to find upon a material fact and the same rule should be applied as to the responsibility for the effect of such failure. See Boulger v. Northern P. R. Co. 41 N. D. 316, 322, 171 N. W. 632.
There is another defect in the special verdict to which, for guidance in the event of another trial, we (jail attention and which, in some jurisdictions, would be held fatal unless waived. As said before, this *174court, on the former appeal, defined the last clear chance doctrine as applied to the case of trespassers upon railroad tracks. Tinder this •definition there is no duty on the carrier to maintain a lookout or to anticipate that trespassers will be upon the tracks, but its legal duty •begins only after discovering the trespasser in a position of peril. There were submitted, notwithstanding this riile of liability, several interrogatories to the jury upon the theory that if the defendant failed to exercise ordinary care in maintaining a lookout so as to discover the presence of the plaintiff upon the tracks in time to avoid injuring- him, the defendant was guilty of actionable negligence. Questions 11, II and 18 sufficiently illustrate this theory:
(11.) “Should the said engineer in the exercise of ordinary ca.ro have known that the plaintiff was in a position of peril in time to avoid injuring him by the exercise of ordinary care?” A. “Yes.”
(II.) “Did the engineer after discovering an object on the track, fail to exercise ordinary care to determine whether or not said object was a human being so that he could have avoided injuring the plaintiff, Edmund Dubs ?” A. “Yes.”
(18.) “Was the want of ordinary care of the defendant and its servants, including the engineer, the proximate cause of the plaintiff, Edmund Dubs’ injury, and Rudolph Dubs’ damages?” A. “Yes.” Assuming that questions 8 and 9 were sufficient upon the ultimate fact, under the last clear chance doctrine as defined by this court in •the former opinion, the plaintiff, in the interrogatories quoted, numbers 11, II and 18, in submitting to the jury the question of defendant’s liability for failure to use ordinary care in discovering the presence of the plaintiff upon the tracks, asked the jury to find facts that were immaterial and upon another and essentially different theory of liability, which was unsound under the facts in this case. The jury found, in answering question 18, that the want of ordinary care of the defendant’s servants was the proximate cause of the injuries and awarded damages accordingly. Want of ordinary care, with reference to what legal duty? This question follows number 11, which, by implication at least, suggests that want of ordinary care in maintaining a lookout for trespassers under the circumstances here constitutes actionable negligence. It is not unreasonable to suppose, since the jury had no instruction from the court as to the law on this point, that the jury, *175having answered number 11 in the affirmative, found in number 18 that the lade of care suggested in number 11 was the proximate cause of the plaintiff’s injury, rather than the failure of the defendant to use ordinary care to avoid injuring plaintiff after discovering him in a position of peril. From the special verdict, it is impossible; to say whether the jury had in mind want of ordinary care in stopping the train after discovering- the plaintiff’s position of peril, or want of ordinary care in maintaining a lookout. If the latter was the case, there was no liability because there was no such legal duty owing the plaintiff — though implied in these questions and the jriry might well have inferred therefrom that such duty was legally owing — under the ciraunstauces and the rule laid down in the prior opinion of this court. The court did not instruct the jury in connection with any question submitted, or otherwise, as to any phrase of the last clear chance doctrine. This is a case; where it was undoubtedly confusing to the jury and dangerous to the plaintiff to shoot a double barrelled gun. The verdict is indefinite'. There is no way to determine upon -which theory the jury found the defendant guilty of that negligence which it says was the proximate cause of the injury. Under such circumstances, a special verdict has been held to be fatally defective. Reffke v. Patten Paper Co. 136 Wis. 535, 117 N. W. 1004. Our statute on special verdicts is substantially the same as that of Wisconsin.
"We do not order a reversal on this ground, however, for the reason that the defendant waived the objection by agreeing in advance that such immaterial questions might be submitted to the jury. Lathrop v. Fargo, M. Street R. Co. 23 N. D. 246, 254, 136 N. W. 88; Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 857; Schultz v. Chicago, M. & St. P. R. Co. 48 Wis. 875, 4 N. W. 402. This does not alter the fact that the special verdict, in view of the answer to question number 9, is equivocal and it cannot be determined whether recovery was allowed on the only theory of liability on which a verdict for plaintiff could be sustained.
The judgment of the trial court is reversed and a new trial ordered.
Birdzell and Nuesslb, JJ., concur.