132 Wis. 662 | Wis. | 1907
The plaintiff has a verdict and judgment, and the only errors assigned are the refusal of the court below to direct a verdict for defendant and refusal to grant judgment for defendant. In such case it is necessary only to examine the evidence for the purpose of ascertaining if there is any credible evidence which, taken in its most favorable aspect to the plaintiff, might directly or by proper inference sustain! the judgment below. If there is such evidence, countervail
The defendant, an interurban common carrier operating its electric cars by the center pole overhead system, has at Brookdale station, where the injury in question occurred, two parallel tracks, seven feet nine inches apart between the inner rails, extending nearly north and south, but somewhat curving at this point. The east track is' used by the north-bound cars and the west track by the south-bound cars. These cars can only be boarded by passengers from the outside rail of each track, and in daytime the passengers stand outside the outside rail and give a signal with the hand for the car to stop. The car makes only a short stop, just long enough to allow the passengers to embark in the same manner in this regard as street railways in cities are operated. Brookdale station is a place where the defendant is accustomed to receive and discharge passengers, but there is no building or platform, the roadbed is widened for a short distance, and the usual stopping place for receiving and discharging its passengers is about twenty-five feet north of a trolley pole standing midway between the tracks, having on it a board sign with the word “Brookdale,” and having on it a device for holding up a rod or lever closing an electric circuit, and thereby causing an electric light to appear ten or twelve feet up on the pole, and so enable prospective passengers to signal approaching cars at night. On this night-signal device there are printed instructions for such passengers in these words: “Hold up handle until car is in sight.” This same signal is employed for north-bound and south-bound cars, but the south-bound car stops within twenty-five feet and before reaching the signal light, while the north-bound car runs twenty-five feet past the signal light to reach the stopping place. The lever or rod for operating the signal light was on the east side of the trolley pole, the overhang of the passing car was one foot ten inches, the diameter of the trolley pole
One who had hy daylight observation become familiar with these conditions and these measurements and the place of stopping the north-bound car might, and probably would, remain between the tracks after he had held up the signal light and until the car arrived, but a person not possessing this familiarity, and arriving on a dark night where distances cannot be so accurately estimated, might ordinarily and usually, in view of the position of the signal light on the center pole, the printed and inadequate instructions
The night in question was dark and foggy. The plaintiff,, intending to board the north-bound ear of defendant at Rrookdale and coming from the east, crossed the east track to the signal light and listened for an approaching car. When he heard the car approaching he pressed on the rod and displayed the signal light, standing on the east side of the pole bearing that light and within about three feet of the inner rail of the east track. As soon as he saw the headlight of the approaching car he let go the signal light, which immediately extinguished, and started eastward briskly, crossed the east track, and was struck at or about the east rail of the east track, having made not more than two or three steps after letting go of the signal rod. We are not informed at what point or at what distance south of the signal light he first saw the headlight, but the motorman saw the signal light when he was about 105 or 110 feet south of the signal light, and whistled to the prospective passenger his acceptance of the signal, as was usual, and immediately began to apply his brake. He saw the signal light disappear, no doubt, at the time the plaintiff released his hand from the signal rod and started to cross the track, when he (the motorman) was at the next pole south of the pole bearing the signal, or ninety-two feet and some inches south of the signal light; but after striking the plaintiff he ran quite a distance past the usual place of stopping, and afterward backed up about 100 feet to where the plaintiff lay, some distance northeast of the signal light. The car approached the station in question at a very high rate of speed, some of the witnesses for the plaintiff claiming at the rate of forty miles an hour, and the dis
“One becomes a passenger when .he puts himself into the-care of the railroad company to be transported under a contract and is received and accepted as' a passenger by the company. There is hardly ever any formal act of delivery of' one’s person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier-' is commonly to be implied from circumstances. These circumstances must' be such as to warrant an implication that the one has offered himself to be carried on a trip about to be-made, and that the other hás accepted his offer.” Webster v. Fitchburg R. Co. 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521, and cases in note.
One in good faith going through the depot to take passage-on the cars is a passenger, although he has not bought a ticket. Grimes v. Pa. Co. 36 Fed. 72; Allender v. C., R. I. & P. R. Co. 37 Iowa, 264. One who enters upon depot grounds by the approaches furnished by the carrier is a passenger. The fare does not have to be paid nor the train entered, but the-person must merely enter within the control of the carrier 'at-the-depot through the usual channels of business with the intention in good faith of becoming a passenger by either paying fare before or after entering the train. Baltimore & O.
“Where a carrier so-operates its trains at a station that a passenger is impliedly invited to cross an intervening track in going to or leaving his train, he is chargeable only with the exercise of reasonable care to avoid danger, and is not necessarily guilty of contributory negligence in failing to look and listen for an approaching train before crossing such track.” See Rose’s Notes to 168 U. S. 339, 18 Sup. Ct. 68.
The reason for the distinction between the case of a passenger crossing a track under such circumstances and the case of an ordinary pedestrian bearing no such relation to the railroad company appears to rest upon the possibility or probability that a reasonably prudent man in the exercise of ordinary care might well believe that, in the face of such implied invitation to cross, the movements of passing trains would be so regulated or adjusted as to permit his crossing in safety. In the instant case the jury was authorized to infer from the evidence that the plaintiff, as a reasonably prudent •man, understood that he was obliged to cross the east track in order to board the car in question and to cross at the time and in the manner in which he did cross, and that due care would be exercised by the defendant for the safety of those so cross- < ing by stopping the car south of or at the signal light. The jury had also the right to consider that the plaintiff was so near the inner rail and in such a position in giving the signal that an ordinarily prudent man, knowing that the car would stop only for a moment to permit him to embark, might have considered it the proper course to cross the track' at the time, and in the manner in which, he did cross it in order to enter the car. It was essentially a question of fact, not one of law,
It follows that the judgment of the circuit court should be affirmed.
By the Court. — The judgment of the circuit court is affirmed.
