54 Wis. 610 | Wis. | 1882
For the purposes of this appeal, we assume that there is evidence sufficient to justify the jury in finding that the train did not stop in the first instance for a sufficient length of time to enable the plaintiff, in the exercise of duo diligence, to get off the train with safety; notwithstanding the undisputed occurrences during the stoppage, as detailed by the plaintiff’s own witnesses, would seem to demonstrate that a sufficient time did elapse while the train was at rest to enable the plaintiff to get off. Does the undisputed evidence show that the plaintiff was guilty of contributory negligence? The undisputed evidence shows that the train started the first time just before the plaintiff passed out of the car in which she was riding, onto the front platform of the same, and that she so passed out while the train was in motion.
It also appears, from evidence which amounts to a demon
It is very certain, from Pemberthy’s evidence, that when, after leaving the conductor and on his way to the west end of the depot, he saw- the plaintiff standing on the front platform of the ladies’ car, the train was moving after having started the second time. The plaintiff’s theory is, that, after the conductor had stopped the train to get Pemberthy’s trunk, and while it was standing still, and while she was in the act of passing from the steps at the front end of the ladies’ car onto the depot platform, the train suddenly started, and that she was thereby thrown onto the depot platform by the jerk.' Had
The plaintiff concedes that she was attempting to get from the car steps onto the depot platform at the instant she claims she was jerked off; so the fact of her being in the act of voluntarily stepping from the ear onto the depot platform is confessed, notwithstanding the special finding of the jury to the contrary, the only dispute being whether such voluntary stepping took place while the train was at rest or in motion. The plaintiff testified, in effect, that the man who assisted her and went out of the car ahead of her,, told her not to attempt to get off the train while it was in motion, but that no one else was present or said anything to her about it. The jury, on the contrary, found that the braketnan and bystanders warned her not to get off while the cars were in motion. She concedes, in effect, that she did attempt to go down the steps, and got' onto the first step, and she don’t know but she got onto the second step, and that the man who assisted her was below her on the step; that she'was anxious to get off the car, but was not much excited until she had stepped down onto the first step, and the train started up, when she became afraid she
The fact is stated by this witness, that the place where the plaintiff was when the train stopped or slackened was some distance west of where she stood at the depot door, while the place where she went onto the depot platform was shown conclusively to have been some feet east of where she stood; and hence her testimony in this regard is in direct conflict with the plaintiff’s theory, and in harmony with the defendant’s theory. The same may be said of the evidence of the plaintiff’s daughter, who testified, in effect, that she was on the depot platform, on the east side of the depot door, when the train stopped; and that the car was in motion when she saw her mother go past her, standing on the lower step of the platform. Of course, but little reliance can be' placed upon duration not measured by conduct, nor distance not measured by objects or measurements. A very careful reading and analysis of the testimony fails to disclose any evidence to sustain the fourth finding, that the plaintiff did not voluntarily step or jump from the cars onto the platform, except certain statements of the plaintiff and inferences which the admitted facts, and facts established by undisputed evidence, clearly show could not possibly exist. The same may be said with reference to the third finding of the jury, to the effect that the plaintiff, while standing upon the steps of the car platform, was thrown there
We must conclude from the admitted facts, and facts established by evidence and circumstances not disputed, and which are of such a character as to preclude the possibility of the correctness of any contrary inference or statement, that the plaintiff not only went out of the car in which she was riding, onto the platform of the same, while the train was in motion, but that she also went down onto the steps, and from there stepped or jumped onto the depot platform, while the train was in motion. The question therefore recurs, whether such conduct on her part was contributory negligence.
In Railroad Co. v. Aspell, 23 Pa. St., 147, it was held that “a passenger who has been negligently carried beyond a station where he intended to stop, and where he had a right to be let off, may recover compensation for the inconvenience, loss of time, and labor of traveling back; but where the plaintiff, under such circumstances, jumped off the car when in motion, though warned not to do so, it was held that he could not íe-cover for the injury sustained.”
In Gavett v. Railroad Co., 16 Gray, 501, it was held that “ a passenger in a railroad car who, knowing that the train is in motion, goes out of the car and steps upon the platform of the station while the train is still in motion, is so wanting in ordinary care as not to be entitled to maintain an action against the railroad corporation for an injury therefrom.”
In Hickey v. Railroad Co., 14 Allen, 429, it was held that “a traveler by railroad cannot maintain an action against a railroad company to recover damages for personal injury sustained by him in consequence of his voluntarily and unnecessarily standing upon the platform of a passenger car while the train is in motion.” See also Nichols v. Railroad Co., 106 Mass., 463; Harvey v. Railroad Co., 116 Mass., 269; I. C. Railroad Co. v. Able, 59 Ill., 131; O. & M. Railroad Co. v. Schiebe, 44 Ill., 460; Burrows v. Railway Co., 63 N. Y.,
In Secor v. Railroad Co., 10 Fed. Rep., 15, a passenger on a train that had approached a station and was still moving slowly, stood on the lower step of a car, in the act of stepping to the platform of the station, when, in consequence of the car being moved forward with a jerk, he was thrown upon the platform and injured; and Drummond, C. J., “held that he was guilty of contributory negligence in attempting to alight from the train while it was in motion.” Bon v. Railway P. Ass. Co., 10 N. W. Rep. (Iowa), 225; L. S. & M. S. Railway Co. v. Bangs, 11 N. W. Rep. (Mich.), 276.
The cases cited are clearly in harmony with Davis v. Railway Co., 18 Wis., 175. In the light of these authorities we must hold that, even assuming that the train did not stop in the first instance a sufficient length of time to enable the plaintiff in the exercise of due diligence to get off the car in safety, yet, as she passed out of the car and went down onto the' steps of the car platform, and from thence stepped or jumped onto the depot platform while the train was in motion, contrary to the warning of the brakeman and bystanders who were present, she must be deemed guilty of negligence which materially contributed to the injury complained of, and hence the seventh and ninth findings of the jury are not supported by the evidence.
We are not certain but we would be justified in reversing the judgment by reason of irregularities in the submission of the case to the jury. The eighth question submitted was: “Were the defendant’s agents guilty of negligence, either in not stopping long enough to allow the plaintiff to alight from the train, or in suddenly starting the train after the plaintiff came ujron the platform, on her way from the car to the depot platform.” To this the jury answered “Yes.” Whether the
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.