The following opinion was filed October 5, 1909:
SibbbckeR, J.The facts disclose no express authority in the conductor to employ plaintiff to assist in the conduct of defendant’s business. Nor do the facts and circumstances show a condition which warrants the inference that a sudden emergency had arisen in the doing of defendant’s business which necessitated plaintiff’s employment to conduct the-defendant’s business. Since there is no ground shown upon which plaintiff can be held to have been the servant of the defendant at the time of accident, no liability for this injury can exist within the relationship of master and servant.
It was plaintiff’s duty, as foreman of the granite company’s business, to attend to the reception of empty cars and to see that they were so placed on the side track that they could be handled and managed by the granite company’s employees-*187for loading. He had participated in .this service and had rendered such assistance as occasion required to accomplish this object. On the day in question he was so engaged while-the railway company’s switching crew tried to anchor the empty cars on the westerly part of the granite company’s side track, and while so engaged in expediting his master’s business he undertook, with the conductor’s consent, to repair the-car brake and was injured. An efficient brake was as necessary for the conduct of the granite company’s business as that of the defendant, and its repair served to further the common interest of both the granite company and the railway company. Under such circumstances plaintiff was not a trespasser or intermeddler as to the defendant’s business,, but was engaged in that part of-his master’s business in which it and the railway company had a common interest. His assistance in repairing the brake was therefore not a service for the defendant company, but one through which he was forwarding the interest and the business of his master. Under such circumstances the defendant’s liability for the negligence of its servants is recognized in the adjudications.
In the case of Welch v. Me. Cent. R. Co. 86 Me. 552, 30 Atl. 116, the court states the rule to be
“that where a mere volunteer — that is, one who has no interest in the work — undertakes to assist the servants of another, he does so at his own risk. In such case the maxim of respondeat superior does not apply. But where one has an interest in the work, either as consignee or the servant of a consignee, or in any other capacity, and, at the request or with the consent of another’s servants, -undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such case the maxim of respondeat superior does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case the person' injured is a mere intruder or officious intermeddler. In the other he is a person in the regular pursuit of his own business, and entitled to the same-protection as any one whose business relations with the master *188■expose Mm to injury from tie carelessness of tie master’s servants.”
Otier cases illustrative of the rule are: Street R. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333; Martyn v. M. & I. R. Co. 95 Minn. 333, 104 N. W. 133; Eason v. S. & E. T. R. Co. 65 Tex. 577; Railroad v. Ward, 98 Tenn. 123, 38 S. W. 727. See, also, 2 Labatt, Mast. & Serv. § 632. We •are of tie opinion tiat tie facts and circumstances of tiis case bring it within the rule of these cases and make tie defendant liable for tie negligence of its servants wiici caused tie injuries.
This leads to tie inquiry whether' tie evidence warrants the finding that tie defendant’s servants were negligent. There is evidence tending to show that the side track within and west of the tunnel was not clearly visible to the trainmen east of the tunnel; that the person in charge of the empty ■cars as they passed over the track to the west kept a lookout for persons to warn them of the danger of the approaching ■cars; tiat men and teams were accustomed to be on and near the track during tie switciing operation; and tiat tie plaintiff was customarily about tiere in tie course of iis duties, to see tiat the empty cars were properly placed and anchored ■on the side track. It is also in evidence that defendant’s servants at the time in question kept no lookout and gave no warning to tie plaintiff of the danger impending from the Racking of tie locomotive and tie cars. In view of tie situation of tie track tunnel and tie likeliiood of plaintiff and ■others being near and about tie track and cars at tie time of ■switching, it was incumbent on tie defendant’s servants to keep a proper lookout and to give warning of the impending movement of tie cars. Erom tie situation disclosed tie jury were warranted in concluding that defendant’s servants were negligent as to these duties and failed to give a warning of tie impending peril which was incident to tie switciing and respotting of tie cars. Tiis issue was submitted to tie jury *189by the special verdict under appropriate instructions and they found that the defendant’s servants were negligent in this respect. This finding cannot be disturbed for want of' evidence to support it, and hence the defendant must be held to have been guilty of the negligence charged.
It is urged that the plaintiff was guilty of contributory negligence in taking the position on the track at the time and place disclosed by the evidence. As we have shown, plaintiff was not a trespasser or an intermeddler. He had last observed the locomotive on the main track remote from the tunnel, and understood that it would not return onto the sidetrack to respot the cars without a signal from the person in charge of the empty cars, which in this case the evidence tended to show was the conductor who invited him to assist in repairing the brake. Hnder these. circumstances it was a question for the jury whether or not he was guilty of negligence contributing to produce his injuries. The court properly submitted this issue to them and their finding must stand.
There are numerous exceptions to rulings of the court on the admission and rejection of evidence over defendant’s objection, to refusals to submit additional questions in the special verdict, to refusals to instruct the jury, and to the instructions given by the court. Of the numerous exceptions to the-rulings on the admission and rejection of evidence many (too-numerous to specify here) are mere irregularities which could not have affected the result to defendant’s injury.
It is urged that the ruling permitting a witness to state that the conductor stated, after plaintiff crawled from under the cars, “He did not think himself that the engine was going to hit the car,” was erroneous, upon the ground that there was-nothing to show how long a time had elapsed since the accident ; hence it was not admissible as part of the transaction- and could not be received as an admission against the defendant. We discover no prejudicial effect from this statement. *190It was undisputed that the locomotive hit the cars, that the •conductor had given no signal for its backing, and that he ■did not expect it to do so while he and plaintiff were attempting to repair the brake. The statement obviously related to uncontroverted facts, and hence its admission in evidence -could not prejudice the defendant.
The defendant objected to the form and sufficiency of the ■special verdict. We deem the verdict as submitted sufficient in form and phraseology, and find that under the pleadings ¡and the evidence it covered all the issuable facts.
The instructions .of the court appropriately and correctly informed the jury of the rules of law applicable to the case. We will therefore omit a detailed discussion of the many exceptions presented to rulings refusing to give requested in■structions to the jury and exceptions to portions of the instructions given.
It is strenuously urged that the court erred in refusing to instruct: “Unless you are satisfied from the preponderance •of the evidence that the second question should be answered ‘Yes,’ you should answer it ‘No.’ ” The court instructed the .jury that their answers to all of the questions should be “in •■accordance with what you shall believe to be the fair weight ■of the whole evidence,” and then specifically directed them, •in submitting each question in the special verdict where the burden of proof rested on the plaintiff, that if they so affirmatively believed from the whole evidence then they should answer the question accordingly, and if they were not so satisfied then they were to- give the opposite answer. The ■phraseology is not that usually adopted to express the rule as to the burden of proof, and it would have been better if the ■court in framing the rule had employed the phraseology approved in the decisions as stating the rule, but we cannot say but that the language employed correctly informed the jury •on whom the burden of proof rested respecting the issues submitted to them. Though the instruction is not strictly ac*191•curate in form, we cannot say that it misled the jury or af-'feeted the substantial rights of the defendant. Beery v. C. & N. W. R. Co. 73 Wis. 197, 40 N. W. 687. Other exceptions on like grounds need not be noticed any further.
After an examination of the record it does not appear that any of the errors complained of affected the substantial rights •of the defendant, and hence no prejudicial error appears in the record. Sec. 2829, Stats. (1898) ; sec. 3072m, Stats, -(ch. 192, Laws of 1909).
By the Court. — Judgment affirmed.
Winslow, C. J., took no part.A motion by the appellant for a rehearing was granted -January 11, 1910, and thereafter it was ordered that the re-argument be limited to the following questions: (1) Does the special verdict in this case sufficiently cover the ground of defendant’s liability found in' the former opinion of this ■court? (2) Is there evidence to sustain such ground of liability? (3). Was such ground of liability concluded by the judgment below under' see. 2858m, Stats. (Laws of 1907, •ch. 346) ?
The cause was re-argued on April 29, 1910.
For the appellant there was a brief-by Walter D. Oorrigan, •attorney, and Clidcsman, Gold & Corrigan, of counsel, and •oral argument by Walter D. Corrigan. They contended that the special verdict does not sufficiently cover the ground of defendant’s liability found in the opinion of this court. 'Such ground of liability is that plaintiff was “expediting his own master’s business.” If plaintiff was more than a mere volunteer it was because he was expediting the business of the Wisconsin Granite Company, his employer. If such was the fact he was not a mere volunteer, and the duty owed by defendant was to exercise toward him ordinary care. From 'that relation to one’s own company, being engaged in ex*192pediting the business he is employed to do, springs all the-reason upon which the rule is founded that one in such a situation is something more than a mere volunteer. The question whether plaintiff was more than a mere volunteer is-therefore the one great and important question in the case, but that question was not tried or considered by court or jury on the trial. Street R. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333, 335; Wright v. L. & N. W. R. Co. L. R. 1 Q. B. Div. 252; Eason v. S. & E. T. R. Co. 65 Tex. 577; Welch v. M. C. R. Co. 86 Me. 552, 30 Atl. 116; 3 Elliott, Railroads (2d ed.) § 1305, p. 753; Railroad v. Ward, 98 Tenn. 123, 38 S. W. 727. Liability cannot exist unless there is a finding-by the jury, justified in the record, that the plaintiff was not a mere volunteer; but there is no such finding in the verdict, nor can such a finding be implied from any finding in the-Verdict. There is no evidence to sustain such ground of liability.
John C. Hart and B. R. Goggins, for the respondent. The-ground upon which recovery is expressly sustained is that plaintiff was expediting his master’s business, and that the-repair of the brake served to further “the common interest of both the granite company and the railway company,” a service “through which he was forwarding the interest and business of his master,” — broadly stated, that plaintiff was “rightfully there” otherwise than as the servant of defendant,, and was therefore not a “trespasser or intermeddler.” A person may be “rightfully there” when the relationship of master and servant does not exist between him and the defendant: (a) When on invitation, without any idea on either side of creating the relation of master and servant, he is doing some single mechanical act without any benefit to himself but beneficial to defendant. Pennsylvania Co. v. Gallagher, 40 Ohio St. 637, 48 Am. Rep. 689; Railroad v. Ginley, 100 Tenn. 472, 45 S. W. 348; Goff v. T., St. L. & K. C. R. Co. 28 Ill. App. 529; Johnson v. Ashland W. Co. 71 Wis. *193553. Also where there is found present some one or more of the following conditions: (b) Assistance rendered upon request “in work connected with their employment.” (c) A service “mutually-beneficial.” (d) “Personal interest” of the plaintiff or his master, (e). Assistance by one having an intérest in “adjusting or fixing an instrumentality” on invitation by defendant or his servant. Welch v. M. C. R. Co. 86 Me. 552, 25 L. R. A. 658; Street R. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333; Cleveland, T. & U. R. Co. v. Marsh, 63 Ohio St. 236, 52 L. R. A. 142; Kelly v. Tyra, 103 Minn. 176, 114 N. W. 750; Meyer v. Kenyon-Rosing M. Co. 95 Minn. 329, 104 N. W. 132; Eckert v. G. N. R. Co. 104 Minn. 435, 116 N. W. 1024; McConnell v. Pa. R. Co. 223 Pa. St. 442, 72 Atl. 849; Eason v. S. & E. T. R. Co. 65 Tex. 577, 57 Am. Rep. 606; Railroad v. Ward, 98 Tenn. 123; Weatherford, M. W. & N. W. R. Co. v. Duncan, 88 Tex. 611, 32 S. W. 878; Texas & N. O. R. Co. v. McDonald (Tex.) 85 S. W. 493; Pickwick v. McCauliff, 193 Mass. 70, 78 N. E. 730; Hartford v. N. Y., N. H. & H. R. Co. 184 Mass. 365, 68 N. E. 835, 836; Mo., K. & T. R. Co. v. Thomas, 48 Tex. Civ. App. 646, 107 S. W. 868; C., N. O. & T. P. R. Co. v. Rodes, 31 Ky. Law Rep. 430, 102 S. W. 321; Maguire v. Fitchburg R. Co. 146 Mass. 379, 15 N. E. 904, 908; Rink v. Lowry, 38 Ind. App. 132, 77 N. E. 967, 969, 970; Hudgens v. St. L. & S. F. R. Co. 139 Mo. App. 44, 119 S. W. 522; Dooley v. M., K. & T. R. Co. (Tex. Civ. App.) 110 S. W. 135; Chicago & A. R. Co. v. Pettit, 111 Ill. App. 172; Balt. & O. R. Co. v. Charvat, 94 Md. 569, 51 Atl. 413; Toledo, St. L. & W. R. Co. v. Miller (Ind. App.) 88 N. E. 968; Balt. & O. S. W. R. Co. v. Trennepohl (Ind. App.) 87 N. E. 1059; Louisville & N. R. Co. v. Crow (Ky.) 118 S. W. 365; Louisville & N. R. Co. v. Hurst (Ky.) 116 S. W. 291; Smalley v. R. G. W. R. Co. 34 Utah, 423, 98 Pac. 311; Shall v. D. & M. R. Co. 152 Mich. 463, 116 N. W. 432; Tinkle v. St. L. & S. F. R. Co. 212 Mo. 445, 110 S. W. 1086; *194Louisville & N. R. Co. v. Farris, 30 Ky. Law Rep. 1193, 100 S. W. 870; Louisville & N. R. Co. v. Smith, 27 Ky. Law Rep. 257, 84 S. W. 755; Central of Ga. R. Co. v. Duffey, 116 Gra. 346, 42 S. E. 510; Watson v. W., St. L. & P. R. Co. 66 Iowa, 164, 23 N. W. 380; Lowenstein v. Mo. Pac. R. Co. 134 Mo. App. 24, 119 S. W. 430; Eaton v. N. Y. C. & H. R. R. Co. 195 N. Y. 267, 88 N. E. 378; Barry v. H. & St. J. R. Co. 98 Mo. 62, 11 S. W. 308, 14 Am. St. Rep. 610; Chicago, I. & L. R. Co. v. Pritchard, 168 Ind. 398, 79 N. E. 508, 81 N. E. 78, 9 L. R. A. n. s. 857, 865; Klugherz v. C., M. & St. P. R. Co. 90 Minn. 17, 95 N. W. 586, 101 Am. St. Rep. 384; Rowley v. C., M. & St. P. R. Co. 135 Wis. 208, 218, 219, 115 N. W. 865; Ill. Cent. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656; Elgin, J. & E. R. Co. v. Thomas, 215 Ill. 158, 74 N. E. 109; Hudson v. Railroad, 142 N. C. 198, 55 S. E. 103; Bain v. N. P. R. Co. 120 Wis. 412, 98 N. W. 241; Promer v. M., L. S. & W. R. Co. 90 Wis. 215, 63 N. W. 90, 48 Am. St. Rep. 905; Ft. W. & R. G. R. Co. v. Eddleman (Tex. Civ. App.) 114 S. W. 425; Iltis v. C., M. & St. P. R. Co. 40 Minn. 273, 41 N. W. 1040.
The following opinion was filed May 24, 1910:
Siebeckee, J. The propositions nrged by the appellant on this rehearing are that by the decision of this conrt its liability to plaintiff is placed npon the relation existing between it and the plaintiff as an employee of the granite company, while he was engaged in a service which furthered the common interest of the defendant and his employer; that the issues as to this liability were not litigated or determined at the trial before the lower conrt; and, if judgment can be awarded on the existing state of the record, it should be in appellant’s favor.
There is no controversy but that the rule of liability which was applied to the case in the decision of this court is well established by the adjudications. The contention is that the *195question of defendant’s liability under this rule of law was not litigated at the trial, and that, upon the facts found by the jury and the undisputed evidence in the record, no case was established which entitled plaintiff to recover as this court decided. These subjects have been ably argued by counsel for the respective parties, and their collection of the adjudications in elucidation of them will be preserved in the published report of the case for future aid and reference.
The decision of the case rested on the ground that plaintiff at the time of injury was performing a service within the scope of his employment and duties and that it furthered the common interest of his master and the railroad company. It is earnestly argued that this conclusion is erroneous, because there is no finding by the jury that plaintiff was performing an act which furthered the common interest of the defendant and the granite company, and that the undisputed evidence will not permit of such an inference. It is claimed that the evidence tends to show that 'plaintiff’s duties in no way required him to be near the cars which were being switched, or to assist in spotting and anchoring them on the granite company’s switch track. The facts relied on for this contention were brought to our attention at the former argument, and re-examination of them convinces us that our conclusions respecting plaintiff’s duty to attend to the reception of empty cars and see that they were properly placed and anchored on the switch track preparatory to loading by the granite company’s employees are correct} and that plaintiff was rightfully at and about the place and track when this switching was being done. It is manifest that the cars were to be so anchored and placed at the -time they were switched onto the side track as to facilitate the business of the granite company, and that the plaintiff was delegated to see that this purpose and object was accomplished. In the course of the performance of this duty he would go near the track so as to be on the ground at the time of switching, and would partiei-*196pate in tlie operation of anchoring the cars by directing and placing the ears on the track where they could be most conveniently and expeditiously prepared and handled for loading. On the occasion in question it appears that he attempted to block the rear car at the proper place of anchorage, when he discovered that it had started to run toward the tunnel. These facts, and the accompanying circumstances of the conduct of this business by the defendant and the granite company, make it clear that plaintiff was performing duties in the line and scope of his employment as a servant of the granite company, and that he and the railroad company’s employees were mutually engaged in anchoring the empty cars on the side track. In view of these facts and circumstances and the situation in which the plaintiff was placed while so engaged with defendant’s servants in accomplishing this purpose, we discover no room to question but that the service so rendered by them was mutually beneficial, both to the railway company and to the granite company.
It is vigorously contended that the plaintiff’s participation in the work of repair of the brake shows as a matter of law that what he did was wholly outside of his master’s business, and that he at the time stepped out of his employment, and that he was a trespasser, intermeddler, or mere volunteer in going onto the track in the rear of the car to participate in adjusting the brake. The argument is that the repair of this brake was an act peculiarly within the exclusive duty of the defendant’s employees and wholly foreign to plaintiff’s duties; that it was wholly unnecessary to make such repair to enable the defendant to spot and anchor the car; and that neither the granite company’s nor the defendant’s business required this service to be done at this time and place. We perceive nothing in the nature of this repair to support the claim that it was peculiarly within the duties of the servants of the railway company. It was a simple defect, of an ordinary nature, which any person engaged in anchoring these *197•oars might readily -undertake to remedy. The claim that it was wholly outside of the scope of plaintiff’s employment, in view of his relation to the business that was being conducted by the railway company for the granite company, is, in our •opinion, not well sustained.
We have adverted to plaintiff’s duties in acting for the .granite company in the conduct of this particular business. It is evident from the facts shown that an efficient brake was an important essential for spotting and anchoring the cars by the railroad company. It also appears that it was an important and serviceable device for handling the cars so as to have them spotted and anchored where the granite company wished to have them placed for loading and putting its product in transit for the market. These various uses of the brake made it mutually and beneficially serviceable to both companies for their immediate and future purposes. In the light of this situation, its immediate repair was most natural and appropriate, and the fact that the railroad company could thereafter have repaired it does not militate against plaintiff for participating in making the repair, or tend to show that he was a meddlesome participant in this attempt to provide .an efficient brake. The conduct of the defendant’s conductor and plaintiff in dealing with the situation thus presented to them in the course of their employment accords with a reasonable compliance with their duties, and tended to further the immediate purposes of the objects of the service they were charged to perform, and establishes the fact that the plaintiff wás rightfully there to help fix the brake.
The evidence respecting the service that was being performed and the consequent relation it bore to plaintiff is not in dispute, except as to whether or not he stepped upon the track at the request of Conductor Dixon and undertook to assist in the repair of the brake at the place of accident. This specific issue of fact is covered by the fourth question in the special verdict and is answered in the affirmative. It there*198fore follows that the record as to these facts is complete and sufficient and no further trial of them is necessary.
The controversies between the parties respecting the defendant’s negligence, its proximate causation of the accident, and plaintiffs contributory negligence are not open to inquiry-on this rehearing. The record, therefore, presents a determination of all the issues raised by the pleadings and the evidence essential to plaintiffs cause of action. From the facts established it is considered that the plaintiff was rightfully at the place of accident and engaged in a service in which his master and the railway company had a common beneficial interest, and hence that he is entitled to recover his damages, and the judgment must stand.
By the Court — Judgment affirmed.