Davis v. Chicago & North-Western Railway Co.

18 Wis. 175 | Wis. | 1864

By the Court,

Code, J.

It appears to us that the third and sixth instructions asked for on the part- of the defendant were proper and should have been given to the jury. The third instruction was as follows : “ If the jury believe from the evidence that the train of cars upon which the plaintiff had taken passage had stopped a sufficient time for the plaintiff to have left them upon the platform where passengers leaving the defendant’s cars usually land, and had again started on their course, and had passed the platform provided by the defendant for passengers to get out of the cars upon, and that the plaintiff then left the platform of the car rather than be carried by, he was guilty of carelessness, and cannot recover in the action.” The sixth instruction embraced essentially the same proposition in a more general form, that if the evidence showed that the train stopped a. sufficient time to allow the plaintiff to. get off, then the defendant was not guilty of negligence in that partic? ular in the management of the train.

The gravamen of the complaint was, that the agents of the company, having, charge of and conducting the. train of cars upon wbicb tbe plaintiff was a passenger, did not exercise due care and attention to tbeir duty, by failing to stop tbe train at tbe Watertown station, where be was to leave, a sufficient time to enable him to get from tbe cars in safety: but that while be was in tbe act of stepping from tbe cars, through tbe carelessness and negligence of such agents, tbe train was suddenly put in motion, whereby tbe plaintiff was thrown violently upon tbe ground and sustained tbe injury complained of. Thus it will be seen that tbe liability of tbe company is founded upon tbe improper management of tbe train at tbe Watertown station. Tbe accident and injury, it is alleged, happened in consequence of tbe omission of tbe agents of tbe company to stop tbe train a sufficient length of time at that place to enable the plaintiff to get from and leave tbe cars in safety. That point was tbe plaintiff’s destination and where be wished to leave tbe train. Of course it was tbe duty of tbe agents of tbe company to stop the train at that station a suitable and reasonable time to enable him to do so. If they did not, they were certainly guilty of carelessness and inattention to tbe lives and safety of tbe passengers desiring to leave the train at that place. This is very obvious. On tbe contrary, if'the cars were stopped at the platform at that station long enough to give tbe plaintiff a reasonable opportunity to leave them in safety, and he did not, but persisted in getting off from the cars after they bad again started rather than be carried by, and in consequence was thrown down and injured, then it would seem that tbe company ought not to be held liable. In that case it could not reasonably be said that there was any negligence or want of care in tbe management of tbe train, in stopping at or leaving tbe station, the plaintiff being notified that that was tbe place be wished to stop at, and ample time, in view of tbe hour and darkness, given him to leave tbe train. And if under such circumstances tbe plaintiff did not leave tbe train when be should, a reasonable time having been given him for that purpose, but was foolhardy enough to jump off after tbe cars bad again started. on their course, and was injured, then “certainly he was a co-operating cause of his own misfortune,” and ought not to recover. It seems to be a well established fact in the case, that the cars were in motion when the plaintiff came out of the car in which he had been riding. The cars arrived at the Water - town station about a quarter past eleven at night, and were considerably behind time. The plaintiff states, in his testimony, that when the station was announced he started toward the rear end of the car to get off: that he got on to the platform at the end of the car, and then upon the steps, when some one took hold of his shoulder and told him to hurry and get off or he would not get off at all. He goes on to say that the person took hold of his shoulder and kept pushing him down, and that he told such person that if they would give him time to get off he would, as there was where he wanted to stop. He says the cars were in motion when he stepped off, and that he did not know that they had stopped at all. It is perhaps well to remark here, that there is no allegation whatever injthe complaint that the plaintiff was injured by being pushed off the steps of the cars by the agents of the company while the train was in motion. Such conduct would be utterly indefensible under any circumstances. The plaintiff, however, does not claim to recover upon that ground. He alleges that the train was not stopped at the Watertown station a sufficient length of time to enable him to get from the cars in safety, and that while stepping from and leaving the cars, through the carelessness of the conductors of the train, it was suddenly put in motion, whereby he was thrown violently upon the ground and injured. According to this, the accident was occasioned by the agents omitting to perform the most obvious duty, namely, stopping the train long enough to give the plaintiff a reasonable opportunity to leave the cars at the usual stopping place ; and the plaintiff’s evidence is mainly directed to sustain the action on that ground. On the other side there was testimony which tended to show that the train was stopped at that station long enough to enable tbe plaintiff to leave it in safety, and that there was no want of care or diligence on the part of the company. And it was doubtless to this conflict of the testimony that the above instructions were intended to apply. They met the case attempted to be established *by the company, and related to the facts upon which it relied to exonerate it from all liability. For these reasons we think they should have been given to the jury.

We do not discover any error in refusing or giving other instructions, which we deem material.

The judgment of the "circuit court is reversed, and a new trial ordered.