17 Wis. 487 | Wis. | 1863
By the Court,
The important question in this case is, whether the circuit court erred in refusing to instruct the jury, as a matter of law, that if they should find from the evidence that the plaintiff was sitting in the car with his arm exposed outside, and received the injury complained of by reason of his arm being so exposed outside of the car, then their verdict must be for the defendant. The court had told the jury, in the general charge, that railroad companies were held to extraordinary diligence and care in the transportation of passen
This was fairly submitting the question to the jury, whether the plaintiff was guilty of negligence in placing his arm in the window in the manner he did, or whether his doing' so contributed to produce the casualty. It was eminently a question of fact, to be determined from all the circumstances and facts of the case, as it appears to us. Eor surely it is a matter of fact, whether a person riding in a railroad car and placing his arm upon the window base, even if it extends slightly outside, does so in a manner hazardous and dangerous under the circumstances, or whether he exercises all proper and reasonable care and attention to his personal safety. It is incumbent upon him, of course, so to conduct himself as not to expose his limbs to collision from obstacles outside. The party must be entirely free from negligence which contributes to the injury, and it was for the jury to say, under all the circumstances, whether the plaintiff was wanting in care and attention or not. This, it is'obvious, must be so, unless the court is authorized in saying, as a matter of law in every case, that a person who extends his hand or arm in the slightest degree out of the window of a railroad car while the train is in motion, is chargeable with negligence, and cannot recover damages if injured while in this position by the carelessness and negligence of the agents and servants of the company. Can the court lay down any such fixed, unbending rule, which is applicable to all cases and all circumstances ? It appears to us clearly it cannot. And
The counsel for the company has referred us to a number of authorities to show that this question, whether the plaintiff was guilty of negligence in having his arm outside the window, was a matter of law for the court to decide, and not one of fact for the jury. And he relied very much upon Todd vs. The Old Colony & Fall River R. R. Co., 3 Allen, 18, which in its leading facts is much like the case at bar, and perhaps not in principle distinguishable from it, where the court held, as a matter of law, that a person sustaining an injury by reason of his arm or elbow being out of the window, was guilty of such a want of due care on his own part as would prevent him from maintaining an action. We have examined that case and the authorities referred to in support of this doctrine, as far as we had access to them. And we must say that the rule laid down in the case of Todd is, in our judgment, contrary to the weight of authority, and unsound in principle. Eor, as already observed, it seems to us almost absurd to say, in every case, that a party who exposes his arm in the least degree outside of the car window is wanting in proper care and attention; that this is a presumption of law which is to control the judgment of the court und jury regardless of other facts and circumstances. Better, we think, to leave the whole question to the jury, whether the party exercised due care and attention or exposed himself to collision. It is a pure question of fact, and the jury is the proper tribunal to determine it.
We do not deny the right of a court to nonsuit a plaintiff when he utterly fails to make out a case. Nor do we say the
It is claimed that the court erred in allowing the testimony of Lacey and Allen in reference to the measurement of the cars. The object of that testimony evidently was, to show that the key was on a level with the bottom of an open window? and, by projecting across the space between the bridge and car, struck the plaintiff’s arm and broke it. It was probably offered as a foundation for the conclusion that it was this dangerous object which caused the injury. In this view, we are by no means clear that it was not competent testimony, taken in connection with other facts proven on the trial. But however this may be, it was manifestly harmless, in view of the fact that two of the company’s witnesses swore that they saw this piece of timber strike the plaintiff’s arm. All room for doubt as to what caused the injury was removed by this evidence. Again, it is urged that the court permitted the plaintiff to contradict the witness Russell as to the, substance of a conversation he had with Allen, without calling the attention of the witness to the time and place of the conversation. But as we understand the bill of exceptions, this objection is not founded in fact. The witness Russell says upon this point, in his cross-examination, that he recollects the time Mr. Allen first spoke to him about the accident; that it was last fall near the depot, and at his house ; that he did remember telling Allen at-that time that he knew nothing about the accident. We do not pretend to give the exact words of the witness, but the substance of his testimony. Allen was asked whether he had a conversation with Russell near the depot or at the latter’s house, about October, as to what Russell knew in respect to
The result at which we have arrived upon this record is, that the judgment must be affirmed.
Judgment affirmed.