Hemmingway v. Chicago, Milwaukee & St. Paul Railway Co.

67 Wis. 668 | Wis. | 1887

Lyon, J.

The negligence charged upon the defendant in the complaint is the failure of its servants, in charge of the freight train on which the plaintiff ivas a passenger, to stop the train opposite the depot or depot platform when it first arrived there, or to inform the plaintiff that it would not be stopped there in the first instance.

At the request of the defendant’s counsel, the court instructed the jury that “ the servants of the defendant, in the operation of the freight train, were not negligent in not anticipating that the plaintiff would attempt to leave the train at the time and in the manner he did.” This was equivalent to an instruction that it was not the duty of the conductor or train-men to notify the plaintiff that the train would not, in the first instance, be stopped at the depot or platform; for, if they were not bound to anticipate that the plaintiff would so attempt to leave the train, there could be no necessity or obligation to give him such notice.

Although there is some general language in the elaborate and able charge of the learned circuit judge from which it may be claimed that he left it to the jury to say whether the failure, to give the plaintiff such notice was negligence, we think he did not intend to submit that question to the jury, and they must have understood that it was not submitted to them.

The charge of negligence predicated upon the failure to give the notice having thus been eliminated from the case, the only negligence imputed to the defendant is the failure to stop the train in the first instance at the depot or platform, instead of passing the same and going from twelve to fifteen rods further east on the main track before stopping. If the judgment is sustained, it must be upon the sole ground that the defendant was negligent in that behalf.

The question whether the injury complained of was caused by the negligence of the defendant was submitted to the jury, and by the jury was resolved in the affirmative. It is obvious that this was the exact equivalent of a submission of the question whether the defendant company was guilty of negligence because it ran the train upon which the plaintiff was a passenger past the depot platform without stopping there. The verdict answers this question in the affirmative, and the judgment rests solely upon this finding.

There is no general rule of law which requires a railroad company to stop any of its trains when it first reaches the depot or depot platform at a station at which passengers are to leave the train. If it be a passenger or mixed train, the company must ordinarily stop the train and allow passengers to disembark on the depot platform; but it may run its trains by the platform in the first instance, if that is required by the exigencies of its business, and afterwards return the same thereto. But if the company carry passengers upon its freight trains (as in the present case), we are aware of no rule of law which makes it the duty of the company to give such passengers an opportunity to disembark on the depot platform. In many, perhaps in most, cases this would be impracticable; and it is common knowledge that it is not usually done. The company fulfils all legal requirements if it affords such passengers sufficient opportunity to leave the train at a reasonably safe and convenient place upon the depot grounds of the station, although not at the depot or platform. We are not here considering how far the obligation of the company to a passenger may be modified or affected by the custom of the company in operating its trains, known to the passenger, and upon which he relies. No such question is involved in this case.

The exigencies of the defendant’s business rendered it necessary that it should run the train on which the plaintiff was a passenger past the depot, without stopping at the depot or platform. The train had been usually so run for several months before the plaintiff was injured. The regulation and usage of the company in that respect were reasonable and proper, and no negligence can justly be imputed to the companj7 because it ran this freight train beyond the depot platform without stopping at the platform. It was error, therefore, to submit to the jury the question whether it was negligence so to run the train. The circuit court should have held, as matter of law, that the defendant was not negligent in failing to stop the train at the depot platform. As the case -was put to the jury on the other allegation of defendant’s negligence, this ruling would necessarily have resulted in a nonsuit or in a direction to the jury to find for the defendant. Of course, the error above indicated is fatal to the judgment.

Whether the court ruled correctly or otherwise in holding that the defendant was under no obligation to anticipate that the plaintiff would attempt to leave the train when he did (which we have seen was equivalent to a ruling that it was not bound to notify the plaintiff that the train would pass the depot without stopping) is a question not properly before us on this appeal. Hence we do not determine it. Neither do we here determine whether the trial court should have submitted to the jury the question of the alleged contributory negligence of the plaintiff. These are close questions on the proofs, and it is so doubtful how they should be determined that we venture the suggestion that the case is eminently a proper one for negotiation and compromise between the parties, rather than for fnrther litigation.

By the Court.— Judgment reversed, and cause remanded for a new trial.