149 Wis. 112 | Wis. | 1912
Tbe following facts are undisputed: Tbe car was in motion when plaintiff attempted to board it. It bad stopped at a usual stopping place and bad just started. The-signals wbicb tbe plaintiff made to tbe motorman were made before tbe car started. It was evident to tbe plaintiff that, the motorman either did not see tbe signals or that be did not intend to pay any attention to them. Tbe attempt to board tbe car was made when it was being speeded up. Tbe front vestibule door of tbe car was closed, so that plaintiff was notified to stay out rather than invited to come in. It was not only closed, but was locked by means of tbe trap door being down, although tbe plaintiff did not know this fact. Still,, be bad as much right to assume that it was locked as be did to assume that it was unlocked. Tbe bottom of tbe door came close to tbe top of tbe platform. When tbe door was closed it was nearly if not quite flush with tbe step leading to tbe platform. Or, stated in another way, tbe outer edge of tbe step was almost on a line drawn perpendicularly from tbe door to tbe step. There was a foothold on tbe step, but plaintiff could retain bis position thereon only by banging to tbe band-holds, and be could not open tbe door if it were unlocked except by using one of bis bands. Under these facts, we conclude that plaintiff was guilty of contributory negligence as a matter of law. Champene v. La Crosse City R. Co. 121 Wis. 554, 99 N. W. 334; Fosnes v. Duluth St. R. Co. 140 Wis. 455, 122 N. W. 1054; Paulson v. Brooklyn City R. Co. 13 Misc. 387, 34 N. Y. Supp. 244; Phillips v. R. & S. R. Co. 49 N. Y. 177.
Having reached this conclusion, it is unnecessary to consider any other errors that are assigned. There was no evidence of gross negligence to go to tbe jury. Tbe evidence of ordinary negligence was, to say tbe least, slight. It may be that tbe áccident would have happened if tbe vestibule door bad been open, but it would not have happened if tbe plaintiff bad not negligently attempted to board tbe car.„ It follows
By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.
