This case was presented to the court, by the learned counsel on both sides, mainly on the question of the negligence of the company in the location, construction and condition of its cattle-guard at' the place of the accident. We think that this question was quite immaterial and of no consequence, in view of the evidence and instructions applicable to another and vastly the more important question, of the negligence of the company in stopping the train with the passenger car north of and beyond the cattle-guard so constructed and situated, whether properly so or not. It maybe conceded that the cattle-guard was properly constructed and situated, and kept in proper condition, and yet, if it be clearly proved that the company was negligent in stopping the passenger car
The instruction applicable to this question asked by the defendant’s counsel, was: “If the plaintiff was informed on the night in question that the train would not be hauled up to the depot platform to allow him to get on the train, he had no right to take another way of getting on the cars, and put himself in peril; and if he did, and was hurt, he cannot hold the company legally liable for such injuries.” This instruction, in this form, was refused, but the court gave it with the addition of these words: “if you find he put himself in such peril.” These additional words were, no doubt, intended by the court as a qualification of the instruction, and to mean, “if you find he Tmowmgl/y put himself in such peril,” or if he knew or had reason to apprehend the peril and danger. If it does not mean this, it can mean nothing but a repetition of the instruction already refused, and this ought not to be presumed against the consistency of the court, and when the instruction asked, without such qualification, was clearly erroneous. The following general instruction was given: “You must not only find that the defendant is guilty of negligence, in order to find for the plaintiff, but you must find that the plaintiff did not contribute to the negligence himself.”
By this instruction the jury was left to find the negligence of the company from any proper evidence. It was in evidence that on the night in question, about half past 9 o’clock, when it was very stormy, dark, raining and snowing, the plaintiff went to the depot at the village of Juneau, for the purpose of
The plaintiff had been in the habit of taking this same train with the caboose some distance north of the platform, but had never taken it standing where he did on this night, north of the cattle guard; and it had not been stopped at this point except for about ten days before; and the plaintiff had never noticed and had no knowledge of the situation and condition of the cattle-guard, arid did not know on this occasion that the caboose had been stopped north of it. These facts present a much stronger case against the company than many cases decided by this court, in which the verdict was not disturbed.
In Delamatyr et al. v. The Milwaukee & P. du Ch. Railroad Co., 24 Wis., 578, Mr. Justice Cole uses the following language, applicable to this case: “ Of course it was the duty of the company to afford passengers reasonable facilities for alighting from the cars, both by a reasonably safe platform,
In Davis v. The C. & N. W. Railway Co., 18 Wis., 175, the cars were not stopped at Watertown depot sufficiently long for the plaintiff to get off safely;-and when attempting to do so he was injured; and the defendant was held negligent, and the plaintiff not.
In Curtis et ux. v. The Detroit & Milwaukee Railroad Co., 27 Wis., 158, the plaintiff attempted to get on the sleeping car in the night, where it had temporarily stopped, before reaching the platform, in such a manner as to lead passengers to . suppose it would not again be stopped and in the proper place, and was injured in the attempt by the sudden starting of the train. The plaintiff was held not guilty of want of ordinary care, and the company was held liable through negligence.
In a late case of Quaife et ux. v. The C. & N. W. Railway Co., 48 Wis., 513, the plaintiff attempted to get aboard of the ladies’ car, which had been stopped before it had reached the platform, and. walked off the platform in the dark, and was injured. Instructions in respect to the duty of the company to haul up to the platform, or to have lights, and to furnish other means to protect passengers, and to take proper precautions against accidents, in such a place, were spoken of approvingly by Mr. Justice Tavloe in his opinion; and there was scarcely a question of the plaintiff’s ‘ right to recover upon the facts, raised in this court, by exception to such instructions or otherwise.
The jury must be presumed to have passed upon these facts, and found the company negligent and the plaintiff not, by their general verdict for the plaintiff. There can be no question that the company was careless and negligent in stopping
The question as to the degree of certainty of evidence in such a case, was distinctly passed upon in the last above case by this court, and it was held that evidence beyond a doubt in a civil action was not necessary.
This disposition of the case renders it unnecessary to pass upon the question as to whether such an action can be revived after judgment for the purpose of an appeal.
By the Court. — The judgment of the county court is affirmed, with costs.