Skow v. Green Bay & Western Railroad

141 Wis. 21 | Wis. | 1909

SiebeckeR, J.

The law is well established in the adjudications of this court that it is the duty of common carriers; of passengers to furnish a reasonably safe place for passengers to alight from trains, and if such carrier negligently fails to perform this duty and thereby proximately causes injury to :a passenger in the exercise of due care the carrier is liable for tbe resulting damage. McDermott v. C. & N. W. R. Co. 82 Wis. 246, 52 N. W. 85, and cases there cited. The jury found that the defendant failed in two respects in its duty to furnish a reasonably safe place for passengers to alight: (1) In so constructing its depot platform as to leave a dangerously large space between the platform and the lowest step of the passenger car; and (2) in furnishing insufficient light at this place -to enable passengers to see this open space between the platform and step. The evidence shows that the platform was used for the conduct of defendant’s passenger business in the day and night time. As stated in Patten v. C. & N. W. R. Co. 32 Wis. 524:

“Whether there was a want of such care and prudence as the company should exercise, in a particular case, in not having a light in or about the depot when plaintiff left the train is not a pure question of law, but rather one of law and fact. In some cases it might constitute negligence, and in others not. . . . But where the question is one of law and fact, or of a mixed character, it should be left to the jury.”

An examination of the evidence in this case shows that it is not so clear that sufficient light was provided as to exclude all inferences that the platform was insufficiently lighted at the place of alighting from the train. There is evidence tending to show that this place was insufficiently lighted for passengers to observe the open space between the step' and the platform, and that no light, or at most only a very dim light, reached to the place for alighting from the train. If the jury found either of these conditions, the company was guilty of negligence in not providing sufficient light to enable its passengers to alight in safety. Duell v. C. & N. W. R. Co. 115 Wis. 516, 92 N. W. 269. Since the platform was to be used in the nighttime by the aid of artificial light, we cannot say as matter of law that the space between the lower step of the coach and the platform made this a reasonably safe place for passengers to alight from trains. The fact that passengers might readily have observed the open space in the daytime, and that when so observed by them it was a reasonably safe-place to alight from trains, does not meet the situation presented here, which required the use of the platform in the-nighttime. There is an obvious and marked difference in seeing the open space on these different occasions; and while a place might clearly be reasonably safe for use by daylight, we-cannot say it would be so by artificial light. And so here, under the evidence tending to show that the open space could not be seen under the condition of the artificial light provided, it was properly left for the jury to determine whether or not the company performed its duty of furnishing a reasonably safe place to alight from the train, and the verdict as to this issue must stand.

Appellant’s counsel, in his argument to show that the defendant was not negligent in the respects alleged, makes assertions and statements to the effect that the plaintiff miscalculated the distance from the car step to the platform; that she-failed to call on the trainmen for assistance when she observed that it was dark; that she evidently omitted to look where she-was about to step and to locate the platform before stepping off the lowest car step; and that she neglected to retain a hold-on the iron railing at the side of the steps while descending.. On these assertions counsel predicates the claim that such conduct on her part constitutes negligence contributing to cause-her fall and to produce the injuries. The infirmity of these claims is that there are facts and circumstances shown by the evidence either negativing these assertions of fact or giving explanations which left their existence or nonexistence to be found by the jury. Upon the evidence the jury might well have concluded that the plaintiff was ordinarily careful in alighting from the train and we cannot, therefore, disturb their finding on this issue.

Exceptions are urged upon rulings on the admission and rejection of evidence, of which the following only need be noticed: Tbe defendant offered a witness to sbow specifically tbe defalcation of plaintiff's busband in bis business and ber knowledge .thereof, as explanatory of and as accounting for ber insomnia, but wbicb sbe attributed to tbe injuries received in tbe accident. Tbe court permitted counsel to show generally tbat ber busband had difficulties with persons for whom be sold musical instruments respecting bis returns on sales of pianos, tbat sbe bad knowledge thereof, and that it caused her trouble and worry. We think these matters were sufficiently gone into to enable tbe jury to determine whether it affected her health or caused ber sleeplessness, as claimed by tbe defendant. In view of tbe state of this branch of the case no •error was committed in excluding further details of tbe bus-band’s business affairs.

An exception is insisted on to tbe admission of evidence in behalf of tbe plaintiff tending to show that sbe was a nurse by profession, tbat she bad been engaged in the business after ber marriage, and tbat sbe expected to conduct it as ber separate business in the future. 'The admission of this evidence becomes immaterial in tbe view we take of this branch of tbe case in relation to the claim tbat tbe damages are excessive. As appears in tbe foregoing statement, tbe plaintiff engaged in nursing before and from time to time after ber marriage. It also appears tbat sbe engaged in such nursing at irregular intervals and on occasions when sbe felt so inclined. Her 'testimony also discloses that sbe did no nursing for about a year immediately preceding the accident, tbat sbe was not established as a nurse at Black Fiver Falls, and tbat sbe had -expected to do nursing again at this place some time in the spring of tbe year in wbicb tbe injuries were received. Giving tbe fullest weight to tbe evidence on this subject, it fails to show tbat sbe was engaged in a separate business or tbat sbe was engaged in performing services whose proceeds sbe was entitled to retain as ber individual earnings. . Nor does it sbow with reasonable certainty tbat sbe was about to engage in sucb services or business in the future. Furthermore, if it be assumed that she would engage in nursing at some future time, it still remains an imaginary and speculative question whether she has sustained a loss to her prospective business or individual earnings. We are persuaded that the evidence as to her separate business and individual earnings is wholly insufficient to establish a loss with that reasonable certainty required by the law to permit a jury to allow her damages therefor.

A liability of the defendant for the damages plaintiff has suffered has been found by the jury; but, since the court improperly submitted evidence to them on which they may have-awarded her compensation for the prospective loss to her separate business and individual earnings, we have concluded that the amount allowed the plaintiff~as compensatory damages ought to be reduced by the amount allowed by the jury as the damages to her prospective separate business and individual earnings. In view of the evidence of damages for which she was entitled to recover, the jury could not have allowed plaintiff as damages to her prospective separate business and earnings to exceed $1,000. In our judgment a reduction to $1,500 of the amount allowed the plaintiff as compensatory damages will in all reasonable probability cure the error of submitting to the jury the evidence of damages suffered by plaintiff to her prospective separate business and individual earnings. Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644.

The printed case is not in conformity to Supreme Court Rule 6, which requires that it shall contain an abridgment of' the record so far as necessary to present the questions for decision. As is said in Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N. W. 832, so it is here: “Counsel have attempted no abridgment of the evidence, but apparently have printed in full the reporter’s minutes. ...” Compliance with the rule-demands that the printed case shall contain in narrative .form •an abridgment only of tbe evidence so far as is required by tbe questions for decision. Counsel owe tbe duty of compliance with tbe court’s rules to aid in an expeditious and ■orderly presentation and examination of tbe cases on appeal. Costs for printing a case not complying witb tbe rules are forbidden by Rule 44.

No other question requires consideration.

By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause remanded for a new trial; witb tbe option, however, to the plaintiff, within twenty days after the filing of tbe remittitur, to take judgment against tbe defendant for tbe sum of $1,500 and costs. No costs are to be taxed for printing tbe case on appeal.