The following opinion was filed March 13, 1917:
Eschweiler, J.The questions presented on this appeal are four: (1) Was the deceased at the time of the accident engaged in interstate commerce? or, (2) If not a case subject to the federal law, did the provisions of sec. 1810, Stats., the so-called fencing statute, apply, and was it rightly applied under the facts in this case by the trial court ? (3) Was there reversible error in the charge of the court or (4) in the admission of evidence as to the children of the deceased ?
No issue is raised by plaintiff on the point that if the deceased was at the time of the accident engaged in interstate commerce the federal law would apply and there would be no liability, and citation of cases therefore is unnecessary.
In a case of this kind, in order that it shall come within the purview of the federal statutes, it must appear that at the time of the accident both the carrier and the employee were actually engaged in interstate commerce. Shanks v. D., L. & W. R. Co. 239 U. S. 556, 560, 36 Sup. Ct. 188; Zavitovsky v. C., M. & St. P. R. Co. 161 Wis. 461, 154 N. W. 974.
Whether the general employment of the deceased in the *617yards of the defendant in and aronnd its car shops in checking over and keeping account, of the cars loaded with material belonging to defendant itself, many of which cars were received from and others consigned to points outside of the state of Wisconsin, brought him within the rule of such cases as St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 159, 33 Sup. Ct. 651, is not necessary to he and is not determined in this case.
It appears from the uncontradicted testimony that the deceased had completed all of the operations required of him in the discharge of his duty to the defendant. He had turned in his report to the office and had left the last place at which any of his duties were to be performed and was free to go from that point in whatever direction he should choose without being under any further obligation to the defendant so far as his employment was concerned. We hold, therefore, that as this accident happened while he was so leaving the premises of the defendant without any immediate intention of returning to complete any of his duties, he was not, just at the time he met his death, engaged in interstate commerce. This case, therefore, is easily distinguished from North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 34 Sup. Ct. 305, where a fireman, after attending to his engine, was killed on crossing the track on his way to his boarding house, preparatory to returning to his engine for an interstate trip.
On the second proposition, relating to the application of sec. 1810, Stats., it is urged that, the deceased being an employee of defendant and in the act of leaving instead of going upon its premises, his case does not present one within the scope or purpose of the statute. This court, however, has directly held in the two eases of Quackenbush v. Wis. & M. R. Co. 62 Wis. 411, 22 N. W. 519, and 71 Wis. 472, 37 N. W. 834, that the statute is for the benefit of the employee of a railroad while thereon as well as for the general public, and we see no reason for altering that view of the statute. The *618same principle Ras been adopted'in other jurisdictions, as seen in the cases of Dickson v. O. & St. L. R. Co. 124 Mo. 140, 27 S. W. 476, 26 L. R. A. 320; Donnegan v. Erhardt, 119 N. Y. 468, 23 N. E. 1061, 7 L. R. A. 527; Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. 370, 23 L. R. A. 768.
The wording of sec. 1810, Stats., indicates that the duty is absolute of fencing both sides of any portion of its road except depot grounds and where the proximity of ponds, lakes, watercourses, ditches, etc., renders a fence unnecessary. Schwind v. C., M. & St. P. R. Co. 140 Wis. 1, 121 N. W. 639; Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189; Bejma v. Chicago & M. E. R. Co. 160 Wis. 527, 149 N. W. 588, 152 N. W. 180; Trojanowski v. C. & N. W. R. Co. 163 Wis. 76, 157 N. W. 536.
This court has not recognized the rule adopted in certain jurisdictions of reading into the statutes exceptions other than those specified in the statute itself, as for instance where a construction of a fence and cattle-guard would seem to be an increased danger to human life, as in Burnham v. C., B. & Q. R. Co. 83 Neb. 183, 119 N. W. 235; Mattes v. G. N. R. Co. 95 Minn. 386, 104 N. W. 234, 235.
That a railroad company is so situated that its tracks are in close proximity to the tracks of other railroad companies, making it inconvenient or dangerous to fence the same, cannot' exclude liability under a similar statute. Kelver v. N. Y. & St. L. R. Co. 126 N. Y. 365, 27 N. E. 553.
It is urged on argument that a fence had been erected in compliance with the statute to the south of all of these ten or twelve sidetracks opposite the place of accident. One of de-, fendant’s civil engineers was called and identified as accurate and complete a blue-print map of the premises at and surrounding the place of the accident, but no fence is disclosed on such map nor did such engineer testify as to the existence of any. The only evidence on this point was that of one Ohorinski, a section foreman, but an examination of *619bis testimony discloses tbat tbe fence wbicb be says at one place in bis testimony was south of tbe tracks was a fence tbat bad been erected by tbe Ealk Company surrounding their plant to tbe south and east of tbe place of tbe accident. There is therefore no showing in tbe record of an attempted compliance by tbe defendant with sec. 1810.
To sustain a judgment for plaintiff in this case it must appear tbat defendant, under sec. 1810, was required to place a fence between the east-bound main track and switchtrack No. 1 just south of it. Eor, under tbe facts here presented, it is not contended by plaintiff tbat tbe absence of a fence anywhere else could be said to have occasioned in whole or in part tbe death of Jacoby.
Appellant contends tbat this track No. 1 is a part of its main railroad system and tbat it is used as a sidetrack for storing completed or repaired cars or engines preparatory to their being switched directly from there onto tbe main track to become a part of tbe general traffic; tbat such cars and engines are in effect put into transportation while there awaiting such use; tbat an engine comes daily and switches them from that track onto tbe main line.
Tbe respondent contends tbat this sidetrack No. 1 as well as tbe ten or twelve tracks to tbe south of it are all parts of tbe car-shop system of defendant and as such to be treated as an industrial plant, separate and distinct from its transportation system, as much so as though tbe car shops were owned or operated by an independent company.
An examination of tbe testimony in tbe record on this controlling feature of tbe case satisfies us tbat it is not sufficient as it now stands to support-the conclusion arrived at by tbe learned trial court in bolding tbat a fence should have been erected between tbe main track and switchtrack No. 1. Tbe testimony is indefinite and uncertain as to whether or not tbe use made of track No. 1 for storing cars and engines after they bad left tbe shops was peculiar to tbat track or whether *620the same use was not made of the tracks to the south of No. 1. If these ten or twelve tracks are all used alike and as a unit for transportation purposes, then the fence could not have been required between track No. 1 and the main track, or, if track No. 1 alone was a part of the transportation system, then still the fence could not have been required north of track No. 1; while if track No. 1 is properly to be considered as a part of the defendant’s industrial plant, then under the facts as here presented it may be held that compliance with the absolute terms of sec. 1810 requires such fencing at the point indicated by the trial court
The trouble, however, with the present judgment is that the evidence is not sufficient to support the finding of the trial court in that regard.
From the testimony of Mr. Gregg, chief dispatcher of the Milwaukee shops, on his direct examination the following questions and answers were had:
“Q. Now what are the trades immediately south of the east-bound track used for? A. For company material and repair ears and cars that have been repaired and cars ready to be shipped out to different points on the road. Q. Are cars moved on that trade? A. They are.”
lie.also testified that the tracks parallel with and south of this No. 1 were numbered consecutively and that there was a lead or switch off of No. 1 track that connects all the others-to the south. Again:
“Q. And the trade No. 1 south of the main track was used for what? A. For cars that was ready for shipment, that was repaired and ready to go out on the road. Q. Sort of storage cars ? A. For the time being.” There was a switch engine came daily and switched the cars to different yards for different destinations. “Q. That is, that was the place where you put the repaired product from your factory, from your shops? A. Yes, sir. Q. Oars came there? A. Ready for shipment. Q. And when they are fixed up you put them out on track No. 1 ? A. Yes. Q. It is not used as a passing *621track for freight? A. No, sir. Q. Not used for traffic? A. No, sir. Q. But merely as a place — shelf—where you put the cars after you fix them up ? A. Yes, sir.”
So it will he noted that in one place he gives the general use of these trades and then again he speaks only of trade No. 1, so that it cannot he fairly said one way or the other as to whether there is in fact any difference in the use of these several tracks, which is a vital question in the case.
After the close of the testimony plaintiff asked leave to reopen the case for the purpose of showing that there had been owned and operated hy the defendant a line or road along what are designated the main tracks before the existence of the shops, and that the combination of tracks and structures south of the main tracks was subsequently located and constructed by the defendant, and also offered to show the width of the original line or road. This offer of testimony was rejected by the court. This testimony may become material in. determining the important question as to the real status of track No. 1.
It is essential, therefore, before it can be held that the absence of a fence was responsible for the death of Jacoby, that it shall be determined by the jury or court whether the contention of plaintiff as to the location of the fence is supported by the actual facts, and the case must be sent back for a new trial for that purpose. Zavitovsky v. C., M. & St. P. R. Co. 161 Wis. 461, 154 N. W. 974. If that be found, then the jury may properly be required to consider the second question of the special verdict, as to whether or not the absence of the fence occasioned in whole or in part the death of Jacoby under the rule laid down by this court in the case of Trojanowski v. C. & N. W. R. Co. 163 Wis. 76, 157 N. W. 536. The facts in this case do not bring it within the rule of Vaillant v. C. & N. W. R. Co. 103 Wis. 548, 158 N. W. 311, relied upon by appellant.
It is urged by appellant that, even if it be found that *622Jaeoby’s death was due to the want of a fence under sec. 1810, nevertheless he, being ah employee of defendant at the time of the accident and, as it must be presumed from the evidence, familiar with the situation, is chargeable with the assumption of such risk growing out of his employment, and that thereby his right to recover would be defeated. This question of assumption of risk under sec. 1810 was squarely before the court in the case of Quackenbush v. Wis. & M. R. Co. 62 Wis. 411, 22 N. W. 519; S. C. 71 Wis. 472, 37 N. W. 834, and it was there held that an employee of a railroad company continuing in such employment with knowledge of the fact that the road is unfenced does not thereby waive his right to recover for injuries occasioned by the want of such fence. The absolute nature of such statutes has been repeatedly passed upon by this court. Randall v. M., St. P. & S. S. M. R. Co. 162 Wis. 507, 513, 156 N. W. 629; Alexander v. M., St. P. & S. S. M. R. Co. 156 Wis. 477, 146 N. W. 510; Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189; Schwind v. C., M. & St. P. R. Co. 140 Wis. 1, 121 N. W. 639.
And this question of any assumption of risk by the deceased may also be disposed of in the negative on the theory that this statute, being held as it is for the general protection of human life, gives an employee who is a member of the general class sought to be protected the same benefit as one outside of such employment; and as-to such outsider there is no doctrine of assumption of risk. Knauer v. Joseph Schlitz B. Co. 159 Wis. 7, 12, 149 N. W. 494; Conrad v. Springfield R. Co. 240 Ill. 12, 17, 88 N. E. 180, 182, 130 Am. St. Rep. 251; Chicago & E. I. R. Co. v. Randolph, 199 Ill. 126, 65 N. E. 142.
The statement by the court in its charge to the jury that the damages they might assess could not exceed $10,000 was error under the rule in Otto v. M. N. R. Co. 148 Wis. 54, 60, 134 N. W. 157. In view of the fact, however, that the dam*623ages were reduced by the court from $10,000 to $1,000, this would not warrant us in reversing the case on the point of this instruction alone.
The objections to the testimony of plaintiff as to the number and ages of the children of deceased were properly overruled. Hamann v. Milwaukee R. Co. 136 Wis. 39, 46, 116 N. W. 854.
By the Court. — It is ordered that the judgment of the circuit court be reversed and a new trial granted.
The following opinion was filed June 12, 1911: