(dissenting). The defendant requested, which request was denied, that the following question be made a part of the special verdict: “Was the crossing-signal device operating as the car in question approached the Asylum avenue crossing?”
The issue of fact presented by such specific question was a very material one in this action. It formed the substance of one of the specific allegations in plaintiff’s complaint of defendant’s negligence, and one which it thereupon became incumbent upon plaintiff to prove. It was also important on the question raised by defendant as to the possible contributory negligence of the deceased. For, manifestly, if the signal device described in the testimony was in operation at this crossing as the deceased approached it, and in spite of the warning that would be given to hearing and sight by the operation of such device he continued to drive upon and across the track in the face of the approaching car, such act might well have been held contributory negligence as a matter of law. Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767; Meissner v. Southern Wis. R. Co. 160 Wis. 507, 509, 152 N. W. 291.
The importance of this particular question is'- also emphasized by the fact that under the uncontradicted testimony of plaintiff’s own witnesses, after deceased had reached a position on the crossing where, if he had looked, he could not help but see the on-rushing car, no attempt was *332made by him to hasten the speed of his team or to do anything whatsoever .to avert the disaster.
The majority opinion holds in substance that, under the instructions given by the court on the other questions of the special verdict, the jury must necessarily have considered in their deliberations on those questions this precise question and have determined that it should be answered N6„ although there were allegations and proof of other grounds upon which the negligence of defendant could have been predicated.
In view of the vital importance that such .question had both as to defendant’s negligence and that of -possible .contributory negligence on the part of the deceased, I think it was prejudicial error- to refuse to submit such question.
In former decisions, too numerous to cite here, the rule of law has been declared explicitly, forcibly, and repeatedly, that where specific acts of negligence are charged in the Gom-plaint, denied by defendant, and litigated on the trial, a special verdict should contain specific .questions covering these alleged acts. A reference to a few of such decisions must suffice. Heddles v. C. & N. W. R. Co. 74 Wis. 239, 258, 42 N. W. 237; Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 362, 77 N. W. 714; Rowley v. C., M. & St. P. R. Co. 135 Wis. 208, 216, 115 N. W. 865; Wawrzyniakowski v. Hoffman & Billings M. Co. 146 Wis. 153, 164, 131 N. W. 429; John E. DeWolf Co. v. Harvey, 161 Wis. 535, 547, 154 N. W. 988.
The effect of such former rulings in that regard appears to me to be effectively, although not expressly, done away with by the ruling in the instant case.
I think the issue thus presented in the proposed question was an .essential one under the facts in this case to malee a proper special verdict, should have been presented, and, in view of the evidence to the effect that such device was in operation at the particular time, refusal to so submit was *333prejudicial error for which a new trial should have been granted.
The appellant moved for a rehearing.
In support of the motion there was a brief by Simmons & Walker of Racine, attorneys for the appellant, and Edgar L. Wood of Milwaukee and Addison L. Gardner of Chicago, of counsel.
In opposition thereto there was a brief by Storms, Foley & Beck, attorneys for the respondent, and William W. Storms, of counsel, all of Racine.
The motion was denied, with $25 costs, on September 25, 1920.