| Wis. | Feb 18, 1902
Lead Opinion
A verdict for the defendant was directed in this case because, in the opinion of the trial court, (1) there was no evidence of negligence on the part of the railway company, and (2) the evidence conclusively showed contributory negligence on the part of the plaintiff. These claims will be considered in their order.
1. In granting the motion, the trial judge said:
“It is without dispute that the passengers had alighted from the two coaches, so that the conductor was warranted in concluding that no more passengers were coming to alight from the train at the time he gave the signal to start, as there was none in sight upon the vestibule or upon the steps from which he could have known that other passengers were to get*371 off. I think there is nothing to show that he was guilty of carelessness in giving the signal for that train to start at that ■time.”
The idea in the mind of the trial judge evidently was that if the conductor, standing on the platform, was warranted in supposing that all the passengers who wished to get off at Oregon had got off when he gave the signal to start the train, then the company was not negligent. It is very manifest that the court applied the wrong test. It may be that any reasonable person standing on the platform where the conductor did would have been of the opinion that all who desired to leave ■■at Oregon had done so, but this is not sufficient. If a reasonable time had not in fact elapsed to enable all passengers to get off who wished to do so, it was negligence to start the train., It is the duty of a passenger carrier to stop its train at stations a sufficient length of time to enable passengers to get on or off in the exercise of ordinary diligence, and unless it does so it is guilty of negligence. 1 Eetter, Carriers, § 66, and cases cited. This proposition was, in substance, laid down by this court in Davis v. C. & N. W. R. Co. 18 Wis. 175" court="Wis." date_filed="1864-01-15" href="https://app.midpage.ai/document/davis-v-chicago--north-western-railway-co-6599136?utm_source=webapp" opinion_id="6599136">18 Wis. 175, and has not been modified since that time. It was there said that it was the duty of a railway company to stop the train at the station where a passenger wishes to alight a suitable and reasonable time to enable him t'o do so, “and, if they did not, they were certainly guilty of carelessness and inattention to the lives and safety of the passengers desiring to leave the train at that place.” The authorities in support of this proposition are so numerous that it is embarrassing to attempt to name them. They will be found cited in Mr. Fetter’s work in the note to the section above cited, and in a note upon page 576, 5 Am. & Eng. Ency. of Law (2d ed.). Ordinarily, the question whether a reasonable length of time was allowed or not is a ■question for the jury. It will depend largely upon the surrounding circumstances, — whether there are few or many passengers, whether the cars are crowded or not, whether the
2. The question of contributory negligence was also one for the jury. It is well settled that an adult who unnecessarily steps from a train which he knows to be in motion is guilty of’ contributory negligence as a matter of law. Brown v. C., M. & St. P. R. Co. 80 Wis. 162. But in the present case the-plaintiff testifies that he did not know the train was moving: when he stepped off. While such a statement might well seem incredible if made twenty-five years ago, it is not so now. It is matter of common knowledge that vestibule trains, with improved couplers, and running on a first-class roadbed, frequently start so noiselessly and imperceptibly as to attract no notice, especially when the outside darkness prevents the passenger from noticing the fact by the use of his eyes. In the-present case both the plaintiff and the witness Ilanan testify that they did not know the train was in motion, and we cannot say, as matter of law, either that this testimony is incredible, or, that they were conclusively guilty of negligence in not knowing the fact. There is evidence that,the conductor met the two men in the vestibule, and said, in substance, to them,, to stop a moment, and he would stop the train. Of course,, if the plaintiff heard this, or ought, in the exercise of ordi
By the Court. — Judgment reversed, and action remanded for a new trial.
Dissenting Opinion
I respectfully dissent from tbe decision •of my brethren in tbis case. It is undisputed tbat tbe train contained eleven cars, including three coaches and a parlor car; tbat tbe train was crowded; tbat it reached Oregon about half past six o’clock in tbe evening; tbat tbe plaintiff rode in the smoking car, five or six seats back from tbe front door, and tbe witness Hanan was seated near him; tbat tbe cars were well lighted; tbat on approaching tbe station “Oregon!” was called out, and tbe train stopped; tbat when it stopped tbe conductor was at or near tbe rear end of tbe train; tbat be got off tbe train onto tbe platform at tbe.front end £>f tbe parlor car, — that is to say, tbe second car from tbe smoker; that several people got off tbe -train at tbat station; tbat tbe conductor walked upon tbe platform from tbe place where be got off to tbe rear end or middle of tbe smoker, and then
“To constitute actionable negligence, tbe defendant must be guilty of some wrongful act or breach of positive duty to tbe plaintiff.” Dowd v. C., M. & St. P. R. Co. 84 Wis. 116.
Besides, it appears from tbe undisputed evidence tbat the-plaintiff walked down tbe steps of tbe car without stopping, and stepped from tbe bottom step off onto tbe platform while tbe car was in motiom True, be says tbat he first discovered it was moving after be struck tbe platform, and tbat be did not know it was moving wben be left tbe step of tbe car. But be was a man fifty years of age, and we must assume tbat be-bad all bis senses, and was a man of ordinary intelligence;;