64 Wis. 652 | Wis. | 1885
The facts in this case are substantially and briefly as follows, according to the testimony of the plaintiff, the respondent on this appeal, and other witnesses: The plaintiff went to the depot at Appleton on the morning of the 16th day of February, 1883, about five minutes before the train of the appellant company arrived, at about 4 o’clock and 32 minutes, to meet his wife, whom he expected would be on the sleeper of said train on her return from New York, and to assist her off the train. The morning was dark and foggy. When the train arrived he got on the first sleeper towards Green Bay and asked the porter of the sleeper if there was a lady to get off, and he said, “ May be she is in the next car,” and he then walked rapidly out of the car, and as he reached the platform of the car the train suddenly started, and he was thrown off and dragged along by the train, and much injured. Ilis wife, Mrs. Griswold, had got off the train before he went on it, and her baggage had been taken off. The evidence was undisputed, that all the passengers who were to go on said train at that point had gone aboard, and all those who were to stop at that depot had got off, and the mail had been exchanged as well as the express matter, and all the baggage had been taken off, and everything done necessary to be done, so far as the passengers and the business of the company at that place was concerned. How long the train stopped was a matter in dispute on the trial, and whether any signal of starting was given. Neither the conductor, nor any brakeman, nor the engineer, nor any one else having anything to do with the running or management of the train, knew, or had information, that the plaintiff had gone aboard of the train, or that he was expected to go aboard of it at that time, for any purpose, and the brakeman at least knew that his wife was off the train and needed no such assistance.
Such being the facts, the vital question in the case is
The duty of the company in such a case is rdalwoe, and not absolute. It seems to me that the law would work the grossest injustice if it could create a liability of the company in such a case. It would seem to be the first duty of the person entering a train for such a purpose to notify some one in its management of his presence, business, and purpose, so as to create some relation to the company, and make it its duty to care for him. The principle is elementary, in all such cases, that the liability of the company to a person injured by being in such a place of danger depends upon the company’s failure to use ordinary care to avoid injuring him after becoming aware of his danger. Shearm. & Eedf. on Neg. 36. Even a passenger must give the company notice when he leaves his proper place on the train, in order to create a duty in the company to care for him out of such place. 2 Mood on Eailways, 1134, 1135. Where a person not a passenger escorted a lady friend onto the cars, and to find her a seat, returned to the platform, and was thrown therefrom by the motion of the train and injured, he was not allowed to recover, and one reason given was that no one of the employees had any notice of his being on the train. Cent. R. Co. v. Letcher, 69 Ala. 106. The court says, in the opinion: “ All who were in charge of it [the train] were ignorant that the plaintiff was upon it, and without notice or request to any of them to slow or
By the Gov/rt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.