We think it clear from the record that the trial court took a mistaken view as to the real issue between the parties, and that the circuit court was correct in holding that the testimony was clear and positive that there was an agreement between the parties that the defendant was to be operated upon by plaintiff for the hernia, and for the sum of $50 to be paid by defendant personally, and that pursuant to such agreement defendant returned to plaintiff on the Monday morning rather than try to make arrangements with the claim agent of the-railroad company to have the operation performed at its expense. The judgment of the circuit court must therefore stand.

By the Court. — Judgment affirmed.

(dissenting). As to the agreement between the plaintiff and defendant the defendant testified: “We agreed if I was injured by the company that I would get the operation free; if I was injured somewhere else I must pay.” As to the time and manner in which he was hurt he testified:

“I was injured in the month of May, 1917, while working for the railroad company. I was hurt while lifting a frog and then I noticed a sharp pain (indicating groin). At the time I felt this pain I noticed something in the region of the *643groin, a lump was here on the side; it was never there before ; it was the first time I noticed it. I had pain when I. felt that lump come out of my groin; I couldn’t go no place. After I felt that, I went to the plaintiff because I knew he was the physician of the St. Paul Railroad Company.”

Three witnesses testified that they were working with defendant at the time he was hurt; that “he was lifting a sixteen-foot frog to put it on a handcar, and he was hurt and they could not go with him and they left him there. He had a pain in the groin and he couldn’t walk.”

I do not understand why this evidence does not raise an issue as to whether defendant was injured while in the employ of the railroad company, notwithstanding the testimony of the plaintiff physician that the. “rupture was of longer standing than from the preceding Thursday, and also that if defendant’s contentions as made on the trial were correct as to the manner in which the rupture was sustained, by heavy lifting, the pain would have been so severe that the defendant would have been unable to do anything on the same day on which it occurred.” Banner C. Co. v. Billig, 170 Wis. 157, 174 N. W. 544; E. Weiner Co. v. Freygang, ante, p. 187, 176 N. W. 781.

Defendant’s testimony with reference to the agreement, above quoted, also raises an issue as to what the agreement was between plaintiff and defendant. To my mind the record presented a controverted issue of fact upon which there was evidence sufficient to sustain the findings of the trial court, and its judgment should have been affirmed by the circuit court.