•Decedent was in the employ of defendant, an interstate railroad company, as a section hand on a division of its line in Kittson county in charge of one Anderson as section foreman. The foreman, ■ with the acquiescence of the company, had provided the employes engaged in track repair work a gasolene motor car to convey them to and from their work, which was operated over and upon the railroad track as an ordinary handcar. The car, as described in the record, is some 6 feet in length, with a floor or platform between the wheels 10 or 12 inches above the ground. A bench or box extending along one side of the floor, about 15 inches wide, incloses the motive power machinery and serves as a seat for the men riding upon the car; the top of which being about 3 feet above the bed of the track. The weight of the car is around 1,000 .pounds. On the day in question decedent with the foreman had been out on the line engaged in leveling the track by driving “shims,” otherwise described as wooden wedges, between the rails and ties where depressions appeared, thus removing points of unevenness in the track. They had been up the line a distance of some 5 or 6 miles and were returning at the noon hour, when the car was derailed, resulting in the injury and subsequent death of decedent. Plaintiff was duly named administrator of his estate and thereafter brought this action under the Federal Employers Liability Act for the benefit of the widow and children. Plaintiff had a verdict and defendant appealed from an order denying its alternative motion for judgment or a new trial.
The assignments of error present as the principal questions urged in support of the appeal: (1) Whether the evidence is sufficient to sustain the verdict upon the issues of negligence and contributory negligence; and (2) whether there was error in the instructions or refusals to instruct the jury. Misconduct on the part of counsel for *340plaintiff on the trial of the cause is also assigned.,- but our examination of the record discloses no serious question in that respect, and we pass that feature of the case without further statement or comment.
A careful consideration of the record brings to light evidence sufficient to sustain the verdict on the issues of negligence and contributory negligence. It appears that the section foreman was operating the motor car on the particular occasion, being seated in the rear while decedent was seated at the forward end on the elevated box containing the motor. The speed at the time, according to the estimate of the foreman, was around 10 miles an hour. Suddenly and without apparent warning of any kind the car jumped the track, causing decedent to be pitched or thrown forward with great violence, landing on his head between the rails of the track inflicting an injury, a fractured skull, from which he died 2 days later. He was not rendered unconscious, but with the assistance of the foreman, who was unhurt, arose and aided in replacing the car on the track and rode thereon to headquarters. He was taken to the hospital on the following morning, where he died as just stated. Whether the car was running only 10 miles an hour, or much faster, the fact remains that the derailment was sudden and quite violent, as the result to decedent conclusively shows. On the facts disclosed the. jury could well have concluded that the car was moving at a much greater speed than that given by the foreman.
The important consideration is whether the derailment was occasioned by reason of the negligence of defendant. And to that we turn our attention. One ground of negligence charged in the complaint and litigated on the trial was that the car was defective and out of order and unsafe for use, to the knowledge of defendant through the foreman. That feature of the case was submitted to the jury in the form of a special verdict in the following language:
“Was the hand-car at the time of the accident in question unsafe for general use for the purpose for which it was intended by reason of having a bent axle or axles?”
The jury answered the question in the affirmative, and to the necessary effect that the car was not in proper or safe condition for *341use. The record sustains the finding. The evidence, the verity, force and effect of which were for the jury and trial court, tends to - show that the axles of the car wheels were hent and out of alignment, and to such an extent that the wheels wabbled when in motion, necessarily causing to an extent a swaying of the car from side to side as the flanges of the wheels came in contact with the rails by the irregular movement. From that situation, coupled with the excessive speed of the car, a conclusion justified by the evidence, and probable unevenness in some of the rail joints, which the parties were at the time out on the line to repair and overcome, the jury could well conclude that the defect in the axles was the direct and primary cause of the derailment, and chargeable to defendant as an act of negligence for which it is liable. That theory was urged by counsel at the trial and, with others, submitted to the jury. Although the evidence is not specific and positive that such was the cause of the accident, taken as a whole, together with reasonable inferences referred to, proper for the jury to draw from the facts presented, the case is brought within the rule of liability heretofore applied by our decisions. Wallin v. Eastern Minn. Ry. Co. 83 Minn. 149, 86 N. W. 76, 54 L. R. A. 481; Lillstrom v. Northern Pac. R. Co. 53 Minn. 464, 55 N. W. 624, 20 L. R. A. 587; Christianson v. Chicago, St. P. M. & O. Ry. Co. 67 Minn. 94, 69 N. W. 640; Mitton v. Cargill Elev. Co. 124 Minn. 65, 144 N. W. 434; Olson v. Great North. Ry. Co. 68 Minn. 155, 71 N. W. 155; Crandall v. Chicago G. W. R. Co. 127 Minn. 498, 15 N. W. 165.
The only mátter of record to challenge that conclusion is found in the contention of counsel for defendant that the accident was caused by the act of decedent in dropping to sleep and falling from his seat to the track immediately in front of the rapidly moving car. We find no sufficient evidence to sustain that view of the case. The foreman who was driving the car did not, according to his testimony, know how the accident happened, though he thought that decedent must have fallen from the car in his sleep. He did not see him fall, or in what manner he was thrown or taken from the car. His mind and attention at the moment were directed to the motor, and immediately as the car left the track he turned off the gas and set the *342brakes and then saw decedent on the ground between the rails; his thoughts as to how decedent came there cannot be given the force of evidence. And, moreover, the physical facts conclusively negative his opinion on the subject. Decedent was seated at the forward end of the car, and, had he fallen to the track while it was in motion, the car would have passed over his body, inflicting serious injury to him. The car weighed 1,000 pounds, yet the only injury shown by the evidence was to the head of decedent; no limbs were broken or other injuries or lacerations shown, which naturally would have resulted had he been struck by the heavy car. The suggestion of counsel that, as decedent fell to the track, the car hit and bounced him forward, is not in accord with experience in such situations. The physical facts, as shown by the testimony of the foreman, are that when the accident was all over decedent lay on his back between the rails 6 feet ahead of the car; no part of his body being in contact with it. From that the conclusion seems irresistible that he was thrown forward as the car came to a violent and sudden stop.
This disposes of the case. The evidence supports the veirdict on the issue of the negligence of defendant, and exonerates decedent from the charge of contributory negligence or assumption of risk. The charge of the court taken as a whole was quite full, and fairly and clearly laid the issues before the jury, and the assignments alleging error therein are not sustained, nor was theire error in the refusal of any of defendant’s requests. It is probable that, had decedent been the cause of his own injury by falling asleep on the car, no recovery' could be had, and the court should have instructed the jury as requested. We do not decide the point, for the evidence will not warrant that view of the facts.
It sufficiently appeaTs that the jury predicated the general verdict upon the special finding, and the rule of practice stated and applied in Burmister v. P. C. Giguere & Son, 130 Minn. 28, 153 N. W. 134, and other like cases has no application. On the theory that the car was defective and unsafe for use the verdict is right, and it is immaterial that it does not affirmatively appear that the probably untenable theory that the “shim” played a part in bringing on *343the accident was or was not considered by the ju'ry. The special verdict is conclusive of legal ground and basis for the general verdict, and there the matter must rest.
Order affirmed.