delivered the opinion of the court.
The facts relating to the nature of appellee’s injury are not in dispute. He had been in the employ of appellant about two years, and for about three months prior to the accident had been doing the work of a coupler. Trains came in at the rate of one about every six minutes, to be uncoupled and coupled by appellee and his partner. The evening when he was hurt, appellee had uncoupled the motor car on an incoming train, and was then told by the train dispatcher, that there was a car in bad order in the train, which he was directed to' uncouple. This he undertook to do. His co-worker at the other end of the train, one Snyder, signaled a motorman who was waiting on a switch to bring in his car to be in readiness to pull back the train. When within twenty feet, Snyder signaled him to stop his motor car, which he did. Appellee was still between the cars uncoupling, which his testimony shows sometimes took five minutes, when suddenly the motor car started ahead and bumped into the train. Snyder escaped, unhurt, but appellee was knocked down and run over, losing his left arm and left leg. This is appellant’s version of the facts. It is not averred in the declaration that this motor car was out of order, though there appears in the record evidence tending to show that this was the case, and that it had been several times reported as in bad order by the motorman. It is not contended that appellee himself was in any way negligent, or responsible for the injury he received.
Appellant’s attorney contends that just what made the car start when it did, is unexplained; that the injury was occasioned by u an unexplained cause, or an unforeseen accident of which the defendant was not shown to have been the negligent cause.” The jury returned a special verdict finding, as they say, from a preponderance of the evidence, that the proximate cause of appellee’s injury was an order given by appellant’s train- dispatcher to the motorman in charge of the motor car which caused the injury. It is urged that this special finding is contrary to the preponderance of the evidence and inconsistent with- other special findings. '
There is evidence in behalf of appellee tending to show that the train dispatcher of appellant, on duty at that point, gave orders to appellee to “ cut off the bad order coach;” that shortly after, while appellee was in between the cars doing this work and knocking out a coupling pin in obedience to such order, and while a motor car was waiting some twenty feet in rear of the train, in readiness to couple on and pull back the cars when appellee should have finished uncoupling them, the train dispatcher called out to the motorman in charge of that motoT car, “ Why in hell don’t you back up there, and couple onto these cars and get out ? The trains are late leaving here; all the trains are late on the road;” or words to that effect; that immediately the said motor car started rapidly forward and hit the coach in front of it with force such as to back the whole train some distance, knocking appellee down and causing him to be run over and injured as before stated. The motorman himself, who was in charge of the motor car which caused the injury, now testifies that he did not see nor hear the train dispatcher say anything of the kind; that he does not know what it was, if anything, which caused his motor car to start thus suddenly forward and strike the cars in front, and that he did nothing that he is aivare of, to so start it. It appeared, however, on cross-examination, that before the trial he had signed a statement to the effect that the train dispatcher in question “ gave me a signal to back, and I did so, and" put on the brake as soon as I felt the car strike;” and be admitted that he signed it and ‘‘ that I believed it might be true.”
Against this testimony tending to show that the train dispatcher did give such an order, in obedience to which the motor car was run against the cars appellee was coupling, is opposed the statement of the dispatcher himself that he did not give any such order or signal. There is direct contradiction in the testimony on this point which it is impossible to reconcile. It is a material question of fact. It is sought by appellant’s attorney to break the force of the evidence referred to, given in behalf of appellee, by attacking the character of the witness Post, who, it seems, was in the service of appellant at the time of the accident, but was serving a jail sentence at the time he testified. He stated that he had been “ on a drunk and got into trouble.” The jury, however, had the witnesses before them, and the fact that the witness was then in jail was fully brought out. The jur}i were charged with the duty of settling the controversy of fact,- and had better opportunities in this case than this court can possibly have, with the record only before it, of forming a correct opinion of the witnesses and their testimony. There is nothing in the testimony of that witness, so far as we can discover, tending to indicate that it is not entitled to fair consideration, and the mere fact that he was in custody of an officer from the jail when he testified, affords of itself no sufficient ground upon which this court can discard it or eliminate it from the record.
It is urged that the special findings are inconsistent and conflicting. One of these finds that the proximate cause of the injury was the order above referred to, said to have been given by the train dispatcher to the motorman, and another that the motorman was negligent, and that his negligence contributed to the injury. This alleged inconsistency is, we think, at the most only apparent. The order given by the dispatcher might be negligent, and the manner in which the motorman executed such order might also be negligent. There are further special findings to the effect that the motorman was not using ordinary care in his duties, and that appellant did not use such care in retaining him in its employ up to the time of the accident. We need not recite the evidence which it is claimed tends to support these conclusions. It suffices to say there is evidence fro and con on these points.
Appellant urges that it is absurd to say the motorman caused the car to move, because it is clearly shown that it “ shot forward with great force and violence, so hard that the impact drove the train thirty-five feet.” We are unable to perceive the alleged absurdity, in view of the evidence tending to show that it had behaved in the same way before., when started up suddenly.
It is. urged that the trial court should have given the written instruction requested by appellant at the conclusion of all the evidence, directing a verdict of not guilty. There Avas, as we have already said, evidence tending to support the plaintiff’s case, and such an instruction would have been erroneous.
It is said the motorman and appellee were fellow-serYants. This is as a general rule, but not always, a question of fact to be determined by the jury. Norton Bros. v. Nadebok, 190 Ill. 595-599. It is not necessary in this case to consider the question at length. Appellee testifies he never knew who the motorman was “ who was coming in or going out,” and it is argued in his behalf that the motormen and appellee were not so associated and dependent upon each other in their work as to bring them within the rule in regard to fellow-servants. However that may be, the jury found that appellant was negligent in retaining this particular motorman in that employment in view of the complaints of his incapacity which had been brought to appellant’s knowledge. The failure to use proper care to employ competent motormen, if such failure there is, is not a risk assumed as part of his service by an employe. Consolidated Coal Co. v. Haenni, 146 Ill. 614. We find no error in the refusal of the instruction upon this point as requested by appellant’s attorney, nor of the other instruction, the refusal of which is complained of, relating to assumed risk. The hazard of an' injury inflicted as in the case at bar is not, we think, one of those assumed by the contract of service. *
It is urged that the verdict awarding appellee $15,000 is excessive. This is very frequently a difficult matter for a reviewing court to determine. Appellee lost both an arm and a leg, admittedly through no fault of his own, while obeying in good faith an express order from his superior. Ho proof was introduced as to appellee’s. earning capacity, and there is no fixed standard by which to fix pecuniary compensation for such losses, disfigurement and suffering as he has experienced. On the whole we are able to find no satisfactory reason to justify us in holding that the verdict is excessive. It is clearly unnecessary, in view of what has been said, to consider at length certain other matters presented in the briefs and arguments of counsel. We are unable to find in this record any sufficient reason to set aside the verdict and judgment. The judgment of the Superior Court must be affirmed.