Hopkins v. Chicago, Milwaukee & St. Paul Railway Co., 128 Wis. 403

128 Wis. 403 | Wis. | 1906

Siebecicee, J.

Tbe negligence alleged by plaintiff, and upon which she relies to bold defendant liable, is that, after defendant’s servants bad announced tbe arrival of its train at Delavan and after it bad come to a standstill, she “arose from her seat in said car and proceeded toward tbe forward . . . end thereof for tbe purpose of alighting therefrom, but before [she] bad bad a reasonable or sufficient time, in tbe exercise of ordinary care, to get off of said train and while she was proceeding to get off, using due care and caution, . . . said defendant, by its servants, agents, and employees so in charge of said train, suddenly, negligently, and carelessly, and without any warning or notice to this plaintiff, caused said train to be suddenly, rapidly, and violently started and jerked, whereby this plaintiff was thrown with great force and violence upon the floor of said car and sustained tbe injuries” as alleged. As above stated tbe evidence of tbe witnesses produced by tbe plaintiff is to tbe effect that, while plaintiff was standing near tbe car door ready to alight, tbe train stopped, and before she bad left tbe car it suddenly and violently started forward with a jerk, causing her to fall to tbe floor. Tbe witnesses produced by tbe defendant, some twenty-odd in number, all agreed on direct examination in tbeir accounts of tbe occurrences at the time of the accident. They all stated that the train did not stop and then suddenly and violently start forward with a jerk. A number of them testified that the train gradually slowed down its speed and came to a standstill at the depot platform in the usual manner and without any sudden jerk or jolt. On the other hand, a number of these witnesses, on cross-examination on this subject, stated that, after the train had slowed down its speed and before it stopped and while the plaintiff stood near the car door ready to alight, it suddenly started up and jerked forward, causing her to fall to the floor. The jury found by special verdict that the train was not brought to a full stop and then suddenly started up again, as stated by plaintiff’s witnesses, and thereby causing her to fall, but that-the train was negligently brought to a full stop and that such negligence was the proximate cause of the injury. Erom the evidence and the instructions of the court upon the issues‘submitted it is obvious that the jury negatived the fact that defendant negligently started up the train after it had come to a standstill, but found that the train, while slowly moving and just before stopping at the station, was suddenly started up and jerked forward.

The question arises: Is the plaintiff, under the complaint, entitled to judgment upon the verdict? It is clear from the allegations of negligence that liability is predicated upon the negligent management of the train in suddenly and violently starting it up while plaintiff Avas in the course of alighting from it. The specific allegation of fact that the train had come to a standstill before she arose from her seat is not an indispensable element to the alleged cause of action, which charges defendant with negligence in suddenly, rapidly, and violently starting and jerking the train. So far as defendant’s negligence is involved under the allegation of the complaint it is immaterial whether this negligent management of the train occurred immediately before or immediately after the train came to a stop. The cause of action alleged pertains to the negligent management of the train in the respect charged, when the plaintiff had reason to believe that she could safely proceed to alight from it. The situation presented is not within the rule which “denies' a recovery where the party declares upon one cause of action and then seeks to recover upon a different one under the evidence, nor is it the case of a failure of proof in support of the one alleged.

It is contended that the defendant-had a right to assume that plaintiff relied upon this specific allegation of fact and, therefore, its testimony was restricted to showing that the -train did not come to a stop and then suddenly start forward as claimed. The cause of action.-.alleged is broad enough to include negligence by a sudden starting up and jerking of the train either immediately before or after stopping, and the complaint gave defendant information of the scope of this claim of negligence, and, as shown above, included the negligence found by the jury. An examination of the record also discloses that defendant produced a very large number of witnesses who testified in full as to the slacking of the speed of the train as it approached the depot, with detailed particularity as to any sudden, rapid, and violent starting and jerking of the train in making the stop for this station, and the management of the train in bringing it to a full stop for passengers to alight. It is difficult to perceive how the proof could have been fuller in all its details and broader in scope to meet the allegation of negligence in the complaint as we view it. We find no justification for the claim that defendant did not fully litigate the issue thus made by the pleading. To permit plaintiff to recover upon the case found by the jury is not in contradiction of the alleged cause of action as established under all the evidence. True, the finding is contrary to. a part of the evidence of plaintiff and of the witnesses called by her, yet this does not preclude a recovery if the verdict is supported by evidence in tbe case. As stated in Hill v. West End St. R. Co. 158 Mass. 458, 33 N. E. 582, in a case where tbe circumstances under consideration were very similar to tbe situation before us:

“Tbe law recognizes tbe fact that parties, as well as other witnesses, may honestly mistake tbe truth, and requires juries to find tbe facts by weighing all tbe testimony, whatever may be tbe source.”

Applying a rule of liberal construction to this pleading, with a view to substantial justice^between tbe parties, we find no justification for tbe claim that there is a variance between tbe alleged cause of action and tbe proof. Tbe following cases are in point: Hill v. West End St. R. Co., supra; Scarry v. Metropolitan St. R. Co. 81 N. Y. Supp. 284; Strahlendorf v. Rosenthal, 30 Wis. 614; Matthews v. Baraboo, 39 Wis. 674; Leslie v. Wabash, St. L. & P. R. Co. 88 Mo. 50; Cincinnati, H. & I. R. Co. v. Revalee, 17 Ind. App. 657, 46 N. E. 352; Hicks v. Galveston, H. & S. A. R. Co. 96 Tex. 355, 72 S. W. 835.

Tbe determination of tbis question renders consideration of tbe other questions argued and submitted unnecessary. It may, however, be observed that, if it were necessary to amend tbe complaint to conform to tbe proof, it should have been permitted as requested, for it is very clear that, since all material questions were fully tried by tbe parties, defendant was not misled by tbe allegation of tbe complaint. Cody v. Bemis, 40 Wis. 666; Aschermann v. Philip Best B. Co. 45 Wis. 262; Russell v. Loomis, 43 Wis. 545; McKinney v. Jones, 55 Wis. 39, 11 N. W. 606, 12 N. W. 381; Rosenberg v. Third Ave. R. Co. 61 N. Y. Supp. 1052; Foley v. Riverside S. & C. Co. 85 Mich. 7, 48 N. W. 154.

Erom these considerations it follows that defendant’s motion to strike out tbe answers to questions 6 and 7 of tbe special verdict should have been denied, and that plaintiff’s motion for judgment upon tbe verdict as rendered by tbe jury should bave been granted.

By the Court.- — Judgment reversed, and tbe cause remanded witb directions to enter judgment for plaintiff in accordance with tbis opinion upon tbe special verdict as rendered by tbe jury, and for further proceedings according to law.