Schiffler v. Chicago & Northwestern Railway Co.

96 Wis. 141 | Wis. | 1897

NewhaN, J.

In order to state a cause of action against the defendant, the complaint must allege such facts as show that the defendant failed in the performance of some diity -which it owed to the plaintiff, and that such neglect of duty caused the plaintiff’s accident. It is claimed that, under the circumstances, the defendant owed to the plaintiff the duty to stop its train at Jackson, so as to permit him to alight there. But the plaintiff’s presence upon the train without a ticket, and in ignorance of the regulation which prevented it to stop at Jackson, was not through any fault or inadvertence of the defendant. By inquiry at the station before entering upon the train, he would have learned of the regulation. It was his duty to ascertain this for himself, and to regulate his conduct accordingly. Even if he had bought a ticket at the station, that would not have put upon the defendant the duty to stop its train at Jackson contrary to its published schedule arrangements. Plott v. C. & N. W. R. Co. 63 Wis. 511. "When he received the information that the train would not stop at Jackson, it was too late to present a predicament. The train had left the station, and had entered upon its scheduled and advertised journey. With•out important reason, it should not be hindered or delayed. The conductor’s duty, in the circumstances, was not doubtful. On payment of the proper fare, it was to carry the .plaintiff to such station near to Jackson as the plaintiff should ■choose, and at which the train’was scheduled to stop. It was,, ■no doubt, the conductor’s duty to run the train according to the- published schedule, and he had no power to bind the company by any change from such schedule. Nor was it •within his apparent power to make such change. So the plaintiff had no right to infer that the conductor had any .power to bind the company by a promise to stop or slow up at Jackson. Plott v. C. & N. W. R. Co., supra. From these considerations, it is plain .that the defendant owed to the plaintiff no duty to stop the train at Jackson. So the failure to stop the train was no wrong of which he can complain.

The only wrong which is plainly alleged in the complaint is the conductor’s.promise to slow up the train. The promise was one which he had no right either to make or to keep. It does not plainly appear whether he in fact kept the pronaise. It does appear that the train was somewhat slowed up. .The plaintiff thought the promise was being kept. After he had been carried some distance by the station, and. when it did not appear to be slowing up any more, he jumped. No one advised him that it was safe to jump. No one knew that he was about to jump. He jumped on his own judgment that it was safe to do so. It was certainly a rash act,, and its consequence to the plaintiff was serious. Nothing but his minority could relieve the plaintiff from responsibility for the act. If he had been four years older, there cquld be no question that he assumed and must bear the consequences of the act. But he was only seventeen years old. So-great-discretion cannot be required of him as if he had been twenty-one years old. But it is required oí him that be exercise such a degree of judgment and prudence as is ordinarily exercised by persons of similar age, experience, and intelligence. It does not appear that he was not a boy, of ordinary intelligence. He lived in Milwaukee. He had on several occasions made journeys by railroad alone. He was not of such immature years as to be relieved from all responsibility for pruden t cond uct. His experience was such as to acquaint him with the fact that there was danger in jumping from a moving train. It must be held that he jumped at his own risk.

Even if this were not so, it is not easy to apprehend how the failure to stop the train could be the proximate cause of the plaintiff’s accident. The natural consequence would be that plaintiff would be carried by the station. If this was a breach of a binding contract of carriage, it would furnish ground for appropriate damages. But that the plaintiff should jump from the train while in rapid motion was neither a natural nor probable consequence of the failure to stop the train. And so it could not well be anticipated. For that reason, it was not the proximate cause of the plaintiff’s accident. Block v. Milwaukee St. R. Co. 89 Wis. 371.

By the Court — The order of the superior court of Milwaukee county is affirmed.

WiNsnow, J., dissents.