Rowley v. Chicago, Milwaukee & St. Paul Railway Co.

115 N.W. 865, 135 Wis. 208, 1908 Wisc. LEXIS 141

Opinion

Winslow, C. J.

1. The first contention made isi that a verdict for defendant should have been directed because the proof was undisputed that the truck wa's left by its employee in a perfectly safe position. The defendant had but one em ployee at the station, one De Long, who combined the functions of freight and passenger agent and baggage master. He testified that about half an hour before the accident he had taken the truck into the freight house and unloaded therefrom three or four sacks of oats, and had then brought it out and put it between the ’stove standing on the platform and the west side of the freight house, just north of the door. In this position it could not have rolled down the platform, because it would first have to move to' the south and up the indino, which would be impossible. De Long further says that he then went into the office of the depot and remained there continuously until the accident happened, and that he authorized no one to touch it. Three young men named Parker, Griffin, and Oaylor came, over to the platform from Dewey’s store about five minutes before the train came in and walked south clown the platform. Parker testified that as he passed the depot he noticed the truck behind the stove in the place where De Long testifies, he put it. On the other hand, Griffin testified that he noticed the truck standing in front of the big door pointing towards the main track, and just about far enough from the track so that a person could walk nicely between the handles and the edge of the platform. Oaylor testified that he1 saw no truck; that there was no truck in the path pointing towards the track nor between the stove and the track. One Nichols testified that he was walking up the track from the’ south, that the train passed him, and, when he was about fifty feet from the south end of the depot, he saw the truck start out from the depot and run straight out tovrards the train, and that it either struck the girl or the train. The plaintiff and her escort (one Strait) both testified that they saw no truck, but as they walked back and had just passed the freight-house door they heard a noise, and the truck came running dowm the incline, struck the train, and then struck the plaintiff from behind, throwing her against the 'stove. This is substan tially all of the evidence concerning the manner in which the accident happened. Parker testified, further, that two boys-were running and playing about the stove when he passed, but there was no evidence that they did anything to the truck. The situation of the evidence must be conceded to be unsatisfactory, but certain physical facts are undisputed. ■The truck did run down the incline and strike the train. It could not have done so unaided if left behind the stove. No one was seen to move it. De Long was the last person shown to have touched it. In view of these admitted facts and in view of Griffin’s positive testimony that the truck stood in front of the door and pointed toward the train as he passed,, we think the question whether De Long left it there was fairly a question for the jury notwithstanding his statement that he left it behind the stove.

2. After the court announced, at the conclusion of the evidence, that a special verdict would be submitted to. the jury, the defendant requested the submission to the jury of' two questions as a part of the special verdict. The first of these questions asked whether the truck was placed by De Long in a reasonably secure position so that it could not of' its own volition run down the incline and collide with the train; and the second asked whether De Long in the exercise-of ordinary care placed and left the truck in a reasonably safe position. The court refused to- incorporate either question in the verdict, deeming the matter fully covered by the third question, and this ruling is assigned as error. Neither-party requested the submission of a special verdict, but the court in the exercise of its discretion directed one to be taken. It will be seen by examination of the first clause of sec. 2858, Stats. (1898), as amended by sec. 1, ch. 390, Laws of 1903, that special verdicts are to be rendered in two contingencies: First, when requested by either party before he-introduces any testimony; and, second, when the court in its discretion directs such a verdict. In either case tire ver- diet is a true special verdict and 'must consist o-f questions relating to controverted and material questions of fact put in issue by the pleadings, and should not he combined with a general verdict. Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 78 N. W. 442; Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644; Schaidler v. C. & N. W. R. Co. 102 Wis. 564, 78 N. W. 732; Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514; Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Cullen v. Hanisch, 114 Wis. 24, 89 N. W. 900. It will also be seen by reference to the third clause of said sec. 2858 that, where no special verdict is requested by the parties or directed by the court, ¿the court has the power to submit to the jury any particular question or questions of fact in addition to their general verdict, and in such case it is a matter wholly within the discretion of the trial court to determine what questions of fact should be so submitted, and the failure to include in such special questions all the material issues of fact, even if requested by thejparties, will not be ground of error. McDougall v. Ashland S. F. Co. 97 Wis. 382, 73 N. W. 327; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176.

In this case the court directed a special verdict, not findings of fact in connection with a general verdict; and hence the rule that the questions submitted'must relate to and cover the controverted and material issues of fact made by the pleadings applies with the same fo^ce as though one of the parties had in due time requested a special verdict. When the court announced its purpose to take a special verdict the defendant’s counsel submitted to the court, as he properly might, two questions which in his opinion related to mate- ' rial issues of fact in the case and were proper to> be included in the special verdict. Conceding that the questions did cover such material is'sues, it would not be error to refuse them in the form requested provided the court sufficiently covered them in questions of its own framing; for, as has been frequently said, the form of the questions is largely in the discretion of the court. Now, the basic and fundamental act of negligence on which the plaintiff's case was founded, and which was denied by the answer, was the negligent placing of the truck by defendant’s employee on the station platform in such a position that the passing train struck it and hurled it against the plaintiff. The questions submitted by the defendant plainly called attention to this basic issue of fact, but the court submitted,. instead thereof, simply the general question whether the defendant was guilty of any want of ordinary care which proximately caused the plaintiff’s injury. This general question was, of course, one of the ultimate questions of combined fact and law upon which the case depended. It covered the question whether De Long negligently left the truck on the incline, but it covered it in much the same way that a general verdict would cover it. It is true that the court charged in substance, in connection with the third question, that if the jury believed that De Long in the exercise of ordinary care left the truck in a reasonably safe position where it would remain of its own weight, then the defendant exercised ordinary care; and it is claimed that by the giving of this instruction the error, if error there was, in refusing to submit the basic question of fact, was cured or became nonprejudicial.

This court has several times held that where specific acts of negligence are charged by the complaint, denied by the answer, and litigated on the trial, a special verdict should contain specific questions covering these alleged acts, and that the submission of a general question simply asking whether the defendant was guilty of want of ordinary care which proximately caused the plaintiff’s injury is not a compliance with the special-verdict statute and will be error, at least where the proper specific questions are requested. Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 77 N. W. 714; Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599; Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777. The reason is quite plain. The statute contemplates tire right of the party to a separate finding of the jury upon each such specific question of fact. It is the duty of the court to administer the statute so that the result aimed at be attained. If the court may refuse to submit such specific questions and simply submit the general question of negligence, then the statute is practically eliminated from the statute book, and in every negligence case two or three general questions covering simply ultimate ‘conclusions of fact and law, and amounting to hut little more than a general verdict, will take the place of the findings of specific fact contemplated by the statute. We hold, therefore, in this case that the court erred in not submitting some appropriate questions -calling upon the jury to determine whether De Long left the-truck in a reasonably safe position upon the platform, and, if he did not, whether his failure so to do was a lack of ordinary care which proximately caused the plaintiff’s injury.

3. In submitting the third question the court charged the jury that, if they answered the first question “Yes,” then they were to consider the third question; that the care required of the defendant under the circumstances was simply ordinary care; but that it was the duty of the defendant to exercise increased prudence and caution in operating its railroad at and in front of the depot and to keep a reasonably vigilant lookout to prevent injury or accident to a licensee such as the plaintiff while crossing over the platform. The giving of this instruction is assigned as error, and it is said that the jury were told by it that the defendant owed the plaintiff the duty of exercising more than ordinary care in the conduct of its business in case it had licensed the public to use the platform for a walk. The court followed this instruction by this sentence: “However, the duty required by the defendant to the plaintiff, if you have answered question 1 'Yes/ is that of ordinary care tinder all the circumstances of the situation,” — and gave further instructions tending to emphasize the idea that ordinary care was the only degree* of care required. Whether the instruction should be held erroneous on this ground in view of the frequent statement that ordinary care alone is required may be doubtful, but we are clearly of the opinion that it was erroneous on other grounds. All persons who go upon a railroad platform upon business, such as the taking of a train, the meeting or accompanying of a friend who is expected to come upon or take a train, as well as the transaction of freight business, are regarded as invited to use the platform, and as to all such persons the duty of the company is to construct and maintain its platform so that it shall be reasonably safe both as to access, use, and departure from it. A mere licensee, however (and in this case there is no claim that the plaintiff was more than a mere licensee), must take the platform as he finds it. lie enjoys his license subject to the perils that may be there, and the company owes him no greater duty than to refrain from active or intentional wrong. Dowd v. C., M. & St. P. R. Co. 84 Wis. 105, 54 N. W. 24. But it is equally well established in this state that, where a railroad company has by long acquiescence licensed the public to use its station grounds for ordinary travel and passage to and fro, the company must conduct its business over such licensed ways with ordinary care to prevent injury to such licensees, and that tire rules of ordinary care in such cases require a greater measure of vigilance than would be required at a place where no such license had been given. Townley v. C., M. & St. P. R. Co. 53 Wis. 626, 11 N. W. 55; Mason v. C., St. P., M. & O. R. Co. 89 Wis. 151, 61 N. W. 300. Ordinary care in such cases will be that degree of care which is reasonably adequate to meet and avoid the dangers which ought to be anticipated under all the circumstances, including the fact of the licensed use. Carmer v. C., St. P., M. & O. R. Co. 95 Wis. 513, 70 N. W. 560. So, while the licensee must take the licensed grounds or platforms a's he finds them and cannot predicate negligence upon defects therein, he is entitled to expect that defendant will- exercise ordinary care in view of all the circumstances in the operation of its business at and about the licensed ways. ' AVhile most, if not all, of the cases involving tire rights of licensees under such cir- - cumstances have been cases where the licensee was injured by the alleged negligent movement of cars or engines, no good reason is perceived wdiy the ’ samé rule of ordinary care should not logically apply to the alleged negligent operation .of a freight or baggage truck upon the licensed ground or platform, as the movement of the truck for railway purposes is equally a part of the operation of the railroad business. Thus in the present case it would be entirely proper to say that the defendant’s employees were required to- use ordinary care in operating and placing the truck upon the platform in case the platform had become a licensed way, and that the measure of ordinary care would be greater than it would he had no license been given, and would be such as would be reasonably adequate to meet and avoid the dangers which ought to be anticipated in view of the licensed use.

Nad this been the fair import of the charge as given, we should find no serious difficulty with it, but the sentence objected to requires the defendant to keep a reasonably vigilant lookout to prevent injury or. accident to- a licensee. The words “vigilant lookout” are almost universally used in reference to the lookout to be kept by train employees in the movement of a train, and we think would naturally be so understood by the jury. In the present case the claim that there was-negligence in the movement of the train had been abandoned, and the only claim in fact(litigated was. the claim of negligence in the placing of the truck. In this respect, therefore, we think the instruction was well calculated to mislead the jury by leading them to believe that they might •consider whether a sufficient lookout was kept by the employees of the freight train, when in fact no such element could properly enter into their deliberations.

By the Court. — Judgment reversed and action remanded for a new trial