23 Wis. 152 | Wis. | 1868
I cannot assent to the position of the cotinsel for the plaintiffs in error, that there was such an absence of evidence of any negligence on the part of the company, and such clear proof of negligence on the part of the plaintiffs below contributing to the injury, that the court should have taken the case from the jury. If it had appeared that the train was brought to a stand in the usual manner, and.that the plaintiff who was injured, had, of her own motion and without any instigation from the agents and servants of the company, attempted to go on board before the cars had fairly stopped, and during the jerking motions that usually result, as the proof shows, in stopping a long train, and had been injured by reason of such attempt, there would be much more ground for sustaining this position. But here there is evidence tending to show that the train came to a full stop, and that the passengers were told to go on board by the persons in charge of the train. There is certainly proof tending to show that the train had come to a full stop after the jerking motions, resulting from checking its speed, had ceased. Not only the direct statements of the witnesses, but the fact that all the passengers at the station were getting on board at the same time the plaintiffs did, tends to show this; for though there is occasionally an individual who will take the risk of getting on board before the cars stop, yet passengers generally do not. But even if it had not come to a full stop, and the stop during which the plaintiffs attempted to go on board, was one of those which resulted merely from checking the speed of the train, as the counsel urges, yet when the passengers were told by those managing the train to go on board, they had a right to assume that the train was ready for their reception, and cannot be charged with negligence in following that direction, the train, when they attempted to enter,
And it makes no difference that they were told to go to the hind car, and that the plaintiffs, instead of doing so, attempted to enter the third car from the rear. The conclusion which they had a right to draw from being told to go on board in any car was, that the train was ready to receive them. And the direction to go to the hind car could only have been reasonably understood as informing them where they could most conveniently find seats. There was no occasion for them to infer that they were guilty of any negligence or exposing themselves to any danger if they entered another car. And if the plaintiff was guilty of no other negligence than that, and was injured by starting the cars suddenly and without notice, while so entering, she ought to recover. The question of negligence is one of fact for the jury, and will be submitted to them, except in those cases where the proof is so clear and decisive in its character as to warrant the court in saying, as a matter of law, that there is nothing to submit. And that, certainly, was not the case here.
But there is one proposition in the instructions given by the court, which I think cannot be sustained. It is found in the remarks immediately succeeding the fourth instruction asked by the plaintiffs, partly as an addition to that instruction, and partly in further enlarging upon the same idea. Without quoting them literally, it is enough to say that they told the jury that if they believed from the evidence that if the company had had an agent, wearing its badge, whose special duty it was to warn passengers not to go on board till the cars stopped, and to inform them in what cars to enter, and to tell them that there was room for all, etc., and that such an agent would have prevented the injury, and that there was no such
As the evidence was conflicting, and it is impossible to say what effect the jury may have given to this instruction, the judgment must be reversed, and the cause sent back for a new trial.
By the Court. — Ordered accordingly.