The defendant’s railway runs through the village of White Bear, and, among others, crosses First street, which is a public and popular thoroughfare, over which citizens in great numbers have been accustomed to pass each day to and from their residences or places of business. This crossing is' near the yard of the defendant in that village, and is much occupied in switching cars and making up trains, so that the street is frequently blocked so long as to subject persons desiring to cross to tedious delays unless they shall take the risk of crawling under or climbing over or between the cars, or should travel several blocks out of their way, to cross the track elsewhere. This custom or practice of passing over or between cars had been so general as to have become well known to the engineer and fireman in charge of the train upon which the plaintiff was injured. On the morning of the accident, the plaintiff, a boy eleven years of age, was sent by his parents on an errand, which obliged him to cross the track of defendant on the street in question. He found it obstructed by a freight train. The men in charge of it had been engaged in switching, and, when it stopped on the crossing, plaintiff observed the engineer on the engine looking back towards him, and thereupon he undertook to cross by climbing over the bumpers between two freight cars, and jumping off upon the other side. The evidence shows that he had frequently seen others pass over in that way safely, and he had done so himself in sight of the same engineer; yet he admits that he had been warned by his parents and others, and knew that it was dangerous to cross in that way. His testimony, however, tends to show that he relied upon the fact that the engineer saw him in the act of crossing, and on that account did not expect the train would be moved while he was between the cars. It also shows that he was in full view of the engineer when he attempted to climb upon the car, and that there were no intervening obstructions to prevent him from seeing the plaintiff, and that, while the latter was in the act of passing between the cars, and was placing one-of his feet upon the *483connecting link between the bumpers, the train was suddenly backed up, and his foot crushed between them.
Upon the evidence in the case we are of the opinion that the jury might find that the engineer saw the plaintiff, and knew that he was trying to pass over between the cars, and that he negligently backed the train down without giving the plaintiff sufficient time to get through safely, particularly in view of the fact that he was in the habit of allowing persons to cross in that way; and, if the jury so found the facts in the case, it was negligence on the part of the engineer which would subject the defendant to an action for damages, unless the plaintiff’s own negligence should preclude a recovery in the ease. But we think, in view of all the circumstances above enumerated, and taking into consideration the plaintiff’s age, that the court was right in submitting the question of plaintiff’s contributory negligence also to the jury.
Assuming, then, that these questions were for the jury, we are next to consider the further question raised by the appellant in respect to the alleged inadequacy of the verdict.
The general power of the court to set aside a verdict for the reason that it is grossly inadequate and disproportionate to the injury suffered in a case of this kind does not appear to be questioned by the defendant’s counsel. The ground on which the courts under statutes similar to our own usually base such relief is that such verdicts should be treated as not supported or justified by the evidence, and hence new trials have not unfrequently been granted on this ground. Emmons v. Sheldon, 26 Wis. 650; Bennett v. Hobro, 72 Cal. 178, (13 Pac. Rep. 473;) Benjamin v. Stewart, 61 Cal. 608; Platz v. Cohoes, 8 Abb. N. C. 396.
The evidence in this case shows that the boy had placed his left foot upon the link between the bumpers, when they came together and crushed his toes and the inside of his foot. The great toe had to be amputated, and two others were badly lacerated, and one of them permanently injured. The foot was pressed out of shape, and has never fully resumed its normal condition, and probably never will. He was under surgical treatment for four or five weeks, and experienced considerable pain and suffering. The injury to the foot, *484together with the loss of the great toe, causes a lameness which is likely to be permanent. The question of the negligence of the respective parties was, as we have seen, one for the jury to decide, and their verdict on that question could not be disturbed; certainly not by this court. But a verdict for plaintiff established the defendant’s liability, and the jury was thereupon bound to give adequate and reasonable compensatory damages.
Without intimating at all what the damages should be, the court is of the opinion that the amount allowed is inadequate and disproportionate to the nature of the injury, and that the verdict ought not-to stand, and the case should therefore be submitted to another jury.-
The jury may have had so much doubt upon the first question that they were induced to compromise on the second.
Order reversed.
(Opinion published 55 N. W. Rep. 53.)